# + 2

(,1 1/,1(

Citation: 65 Fed. Reg. 37879 2000

Content downloaded/printed from HeinOnline (http://heinonline.org) Fri Jul 30 13:58:45 2010

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License

-- The search text of this PDF is generated from uncorrected OCR text.Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

available through routes outside the Old Park that have been historically used for that purpose. Therefore, the use of snowmachines is not authorized by section 1110(a) for suchtravel. Further, Congress did not authorize subsistence activities in the Old Park.In addition, the National Park Service has determined that the use ofeven a few snowmachines in the Old Park would be detrimental tothe resource values ofthe

area. Therefore, because no usage is authorized in the Old Parkby section 1110(a) the Old Park remains closed to all snowmachine use in accordance with 36 CFR 2.18. (3) Where canIoperatea snowmachinein DenaliNational Park andPreserve?You canuse a snowmachine outside ofthe Old Park for traditional activities or travel to and from villages andhomesites and other valid occupancies as authorized by 43 CFR 36.11(c), or when lawfully engaged in subsistence activities authorized by §13.46.

(4) What types ofsnowmachinesare allowed?The types of snowmachines allowed are defined in § 13.1(q)under snowmachineor snowmobile.

(5) What otherregulationsapplyto snowmachineuse? Snowmachine use is governed by regulations at §2.18(a) of this chapter, traffic safety, §2.18(b) of this chapter, state laws, and §2.18(d) and (e) ofthis chapter, prohibited activities; and 43 CFR 36.11(a)(2) adequate snow cover, and 43 CFR 36.11(c) traditional activities.

(6) Who determineswhen thereis adequatesnowcover?The superintendent will determine when

snow cover is adequate for snowmachine use. The superintendent will follow the procedures in §§ 1.5 and 1.7 ofthis chapter to inform the public.

(7)Nothing in this section shall limit the authority ofthe superintendent to restrict or limituses ofan area under other statutory authority.

Dated: June 7,2000. Donald J.Barry, AssistantSecretaiyfor FishandWildlifeand Parks. [FRDoc. 00-14754 Filed 6-16-00; 8:45 am]

BILLING CODE 4310-70-P ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52 and 81
[OH-132-2; KY-116-2; KY-84-2; FRL6717-1]
Approval and Promulgation of Implementation Plans and Designation ofAreas forAir Quality Planning Purposes; Ohio and Kentucky
AGENCY: Environmental Protection Agency (EPA). ACTION: Finalrule.

SUMMARY: We are determining thatthe Cincinnati-Hamilton moderate ozone nonattainment area (CincinnatiHamilton area) has attained the 1-hour

ozone National Ambient Air Quality Standard (NAAQS)by its extended attainment date. The CincinnatiHamilton area includes the Ohio Counties ofHamilton, Butler, Clermont, andWarren andthe Kentucky Counties ofBoone, Campbell, andKenton. This determination is based on three years of complete, quality-assured, ambient air monitoring data for the 1996 to 1998

ozone seasons that demonstrate that the

ozone NAAQS has been attained in the
area, aswell as the most recent 3-year period of datafrom 1997-1999, which shows the area iscontinuing to attain. Onthe basis ofthis determination, EPA is also determining that certain attainment demonstration requirements, along with certain other related requirements ofPart D ofTitle 1ofthe Clean Air Act (CAA), are not applicable
to the Cincinnati-Hamilton area.

We are also approving an exemption for the Cincinnati-Hamilton area from the nitrogen oxides (NOx)requirements

asprovided for in section 182(f)ofthe CAA. Section 182(f) establishes NOx requirements for ozone nonattainment

areas. However, it also provides, in subsection 182(f)(1)(A), thatthese requirements shall not apply to an area ifthe Administrator determines that additional NOx reductions wouldnot contribute to attainment ofthe ozone NAAQS in that area. Because the Cincinnati-Hamilton area is currently attaining the ozone NAAQS without benefit ofadditional NOxreductions,

we are granting the area aNOx exemption. As a result,the CincinnatiHamilton area will no longer be subject
to the section 182(f)NOxrequirements; however, all NOx controls previously approved for the area byEPA must continue to be implemented.

We are also approving the State of Ohio Environmental Protection Agency's (OEPA) and the Commonwealth ofKentucky Natural Resources and Environmental Protection Cabinet's (Cabinet)requests to redesignate the Cincinnati-Hamilton

area to attainment ofthe 1-hour ozone NAAQS. The original redesignation request from OEPA, dated June 28, 1999, was received onJuly 2, 1999, and completed on December 22, 1999. The Cabinet's redesignation request to EPA

was dated October 29, 1999. In approving these redesignation requests, EPAis also approving, asrevisions to the Ohio and Kentucky State Implementation Plans, the States' plans for maintaining the 1-hour ozone standard for the next 10 years. EFFECTIVE DATE: This action willbe effective on July 5, 2000. ADDRESSES: Copies ofthe OEPA's and the Cabinet's submittals and other information are available for inspection during normalbusiness hours atthe following locations. Interested persons wanting to examine these documents should make an appointment with the appropriate office at least 24 hours before the visiting day. The reference filenumbers are OH-132, KY-116 and KY-84. United States Environmental Protection

Agency, Region 5, Air Programs Branch (AR-18J), Regulation Development Section, 77 West Jackson Boulevard, Chicago, Illinois 60604. United States Environmental Protection

Agency, Region 4, Air Planning Branch, Regulatory Planning Section, 61 Forsyth Street SW, Atlanta, Georgia 30303. FOR FURTHER INFORMATION CONTACT: William Jones, Environmental Scientist,

United States Environmental Protection Agency, Region 5, Air Programs Branch (AR-18J), Regulation Development Section, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6058, (jones.william@epa.gov). AllisonHumphris, Environmental

Scientist, United States Environmental Protection Agency, Region 4, Air Planning Branch, Regulatory Planning Section, 61 Forsyth Street SW, Atlanta, Georgia 30303, (404) 562-9030, (humphris.allison@epa.gov).

Table ofContents

I.Whatis thebackground forthese actions? II.What comments did wereceive and what

are ourresponses? III. What actions are we taking? IV.Why are we taking these actions? V.What arethe effects ofthese actions? VI.Approving SIPRevisions inAudit Law States. VII. Administrative requirements.

A.Executive Order 12866 

### 37879

HeinOnline -- 65 Fed. Reg. 37879 2000Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

B. Executive Order 13045 C.Executive Order 13084 D.Executive Order 13132 E.Executive Order 12898 F. Regulatory Flexibility G. Unfunded Mandates H. Submission to Congress andthe

Comptroller General I.National Technology Transfer and

Advancement Act J.Other K. Petitions forJudicial Review

Whenever "we," "us," or "our" are used we mean EPA.

I. What Is theBackground forThese Actions?

See proposed rulemaking published January 24, 2000 (65 FR 3630). On March 17, 2000 (65 FR 14510), EPA reopened the public comment period until March 24, 2000.

Prior to the January 24, 2000 proposal
to redesignate the area, EPA approved
two 1-year extensions ofthe area's attainment date (62 FR 61241, November 17, 1997; 63 FR 14673, March 26, 1998) making its new attainment date November 15, 1998. The area attained the 1-hour standard by its extended attainment date (November 15, 1998).

II. What Comments DidWe Receive and WhatAre OurResponses?

Comments in support ofthe rulemaking action are not summarized below. The adverse comments and EPA responses to them are provided below. Comment1:The Ohio Chapter ofthe Sierra Club requested a 30-day extension, beyond February 23, 2000, of the public comment period due to the proposal's alleged technical complexity andthe unavailability oftheir Conservation Chair during the last week ofthe commentperiod.

Response1:EPAreopened the
commentperiod until March 24, 2000. See 65 FR 14510, dated March 17, 2000.

Comment2:The commenter believes that the air quality protections provided by designation ofthe area as nonattainment are needed to address continued adverse health effects from
poor air quality. EPA has adopted a

more stringent air quality standard based onan 8-hour average rather than 1-hour average ozone concentrations. The 8-hour average standards have been "suspended" by the Circuit Court of Appeals ofthe District ofColumbia. The
court statedthat it accepted EPA's findings thattighter standards were needed toprotect public health. The
commenter claims that an important factor in the litigation is that even the 8-hour standard is insufficient to protect public health with an adequate margin ofsafety. Thus, the commenter implies that attainment ofthe 1-hour ozone standard isinsufficient to protect public health.

The commenter does not analyze air quality in relation to the 1-hour standard, the 8-hour standard, or any other criteria. Instead, as evidence of
poor air quality,the commenter cites analyses bythe Natural Resources Defense Council. The comments highlight the deaths attributable to inhalation ofparticulate matter. The
comments alsoreference Cincinnati Health Department estimates of"'about 5000 sublethal cases per year' of temporary respiratory problems due to

ozone levels." The commenter concludes that "lifting restrictions imposed by nonattainment status would violate the spirit ifnot the letter ofthe Act by increasing the exposure ofthe public to [unsafe levels]."

Response2:EPA continues to believe that implementation ofthe 8-hour
average ozone standard it adopted in 1997 would provide amore appropriate level ofprotection against ozone's adverse impacts. EPA is pursuing Supreme Courtreview ofthe Circuit Court's ruling,American Tmcking Assoc. v.EPA, 175 F.3d 1027, modified

onrehearing 193 F.3d 4 (D.C. Cir. 1999), with hopes ofbeing able to apply the full legal authority ofthe Clean Air Act
to mandate attainment ofthe revised standard. EPA does not believe that the Cincinnati-Hamilton area's status with respect to the 8-hour standard is relevant to the issues in this rulemaking,

asthis rulemaking concerns a redesignation under the 1-hour standard, not a designation made under the 8-hour standard, for which designations have yet to be made.

Comment3:The commenters note the impact ofpoor air quality in Hamilton County (the county containing the City ofCincinnati) on the African-American community, and request that EPA "consider the racial, ethnic and economic composition oflocal communities in relation to volatile organic compound (VOC) emissions,

ozone formation, and ozone accumulation." The commenters allege that redesignating the area as attainment would violate President Clinton's Executive Order 12898.

Response3:The commenters imply that the area isnot meeting the standard for ozone. EPA's rulemaking action here determines not only thatthe CincinnatiHamilton area is attaining the 1-hour standard for ozone, but that its State Implementation Plan and maintenance plan provide for attainment and maintenance ofthe standard throughout the area. The commenters assert thatAfricanAmerican and low-income residents in the center-city are exposed tohigher

ozone levels than other residents. The air quality datafor the entire CincinnatiHamilton area, however, reflects levels below the ozoneNAAQS. Further, commenters' Appendix 1 indicates that "ozone monitors in the north and northwest suburbs havetraditionally measured the highest ozone levels", whereas the monitors near the communities referenced by the
commenters havemeasured comparatively lower levels ofozone.

We therefore find thatthe rulemaking
atissue here is consistent with Executive Order 12898 and does not impose any disproportionately high and adverse human health or environmental effects on minority and low-income populations.

Comment4:The commenters allege thatthe State Implementation Plan (SIP) is inadequate in addressing population and economic growth impacts inthis region.

Response4:The maintenance plan adequately takes into account growth and population impacts on emissions in the Cincinnati-Hamilton area. Both Ohio's and Kentucky's emissions projections for point sources use Bureau ofEconomic Analysis (BEA) industrial employment projection databroken downby Standard Industrial Classification (SIC) to "grow" the point

source emissions into the future.

The average annual growth rates used
to project point sources in the Ohio portion ofthe area were between -0.05 and 2.8 percent. The emissions projections for area sources are grown using BEAindustrial employment data broken downby SIC for some area

source categories. Other area source categories are projected using projected population data forthe area. The growth
ratesused for area source projections

were around zero to justover one percent per year.

In Kentucky, the growth rates for point sources were around a half percent decrease to around a four percent increase in growth per year. The ranges for area sources inKentucky

were from around zero to around three percent per year.

The mobile source emissions projections were madeby the OhioKentucky-Indiana Metropolitan Council ofGovernments (OKI), which is the local metropolitan planning organization. They used a travel demand model, and MOBILE5a-H (EPA's mobile source emissions factor model), along with post-processing
programs to calculate emissions for the 

### 37880

HeinOnline -- 65 Fed. Reg. 37880 2000Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

area. The OKI travel demand model uses demographic and land use data for each of1003 Traffic Analysis Zones and capacity and free-flow speed characteristics for each roadway segment in the transportation network
to produce a "loaded" highway network with forecasted traffic volumes with revised speeds (based on specified speed/capacity relationships). Complete
sets ofpopulation, household and employment forecasts were prepared for 2010based on the 1990 Census and projections from the Ohio Department of Development and Kentucky State Data Center. The modeling process used to develop this 2010 emissions data was calibrated using the latest demographic and land use data available. The transportation network used in this analysis includes the existing highway andtransit network plus allcapacityrelated highway projects included in OKI's financially-constrained 2020 Metropolitan Transportation Plan as amended inJune 1999. The emissions projections in the area do take into consideration growth and changes in population.

A comparison was made ofthe change in volatile organic compound and nitrogen oxides emissions in the maintenance plan for the CincinnatiHamilton area versus the statewide emissions estimates used in the Tier 2 rulemaking. "Data Summaries ofBase andFuture Year Mass and Modeling Inventories for the Tier 2Final Rulemaking, Detailed Report," EPA420- R-99-003, September 1999. In the maintenance plan the area-wide VOC emissions decreased 11% between 1996 and 2005.1 This compares to statewide emissions decreases of 25% and 13% between 1996 and 2007 for Ohio and Kentucky, respectively. In the maintenance plan the area-wide NOx emissions decreased 8% between 1996 and 2005. This compares to statewide emissions decreases of47% and 45% between 1996 and 2007 for Ohio and Kentucky, respectively.

The statewide NOx emissions were projected lower in the EPAreport mainly due to projected emissions reductions required by EPArules affecting Electric Generating Units. If the reductions from Electric Generating Units were not included in the statewide projections then the statewide NOx emissions reductions would be around 10% and 6% for Ohio and Kentucky, respectively. This projection without crediting Electric Generating Units reductions compares well with the estimates in the maintenance plans.

'Area-wide emissions projections for 2007 were not availablefor the maintenance plan. The maintenance plans did not include the Electric Generating Units reductions in projections offuture emissions. Overall, this shows that the states' estimates offuture NOx emissions in the maintenance plan are higher than what would be expected to occur due to population and economic growth.

This rough comparison indicates that the maintenance plans do not underestimate the affects ofpopulation and economic growth. The maintenance plans' estimates offuture emissions

more than adequately account for any future population or economic growth in the Cincinnati-Hamilton area. The states' estimates offuture growth provide a margin ofsafety, are appropriate, reasonable and meetEPA standards for maintenance plans.

Comment5: The commenter is concerned thatthe state ofOhio is inadequately enforcing the Clean Air Act. The commenter indicates that ithas identified some indications that Ohio is failing in implementation and enforcement ofthe SIP. For example, the commenter states that the air quality monitor in Middletown has demonstrated that air quality standards for ozone have been exceeded. AK Steel ofMiddletown is the fourth largest emitter ofVOCs (9006.2 tons per year) in Ohio according to an EPA analysis of data accumulated between 1990 and 1995. The commenter claims, however, that EPA sectorfacility indexing project data shows thatfor all of1997 and for the first two quarters of 1998, the most recent quarters onthe database, AK Steel was out ofcompliance with SIP andNational Emission Standards for Hazardous Air Pollutants requirements. The commenter states that no penalties enforcement actions, or schedules of compliance are listed in the database andthat there have been no news releases by Ohio EPA announcing any recent enforcement actions. A similar situation is alleged to have occurred with the local power plant, Cinergy Beckjord, which the commenter

assumes to be one ofthe larger emitters in the region. The commenter asserts that the facility isnow being sued by EPA for apparently skirting the CAA for many years despite supervision by the State ofOhio. The commenter objects to EPA's acceptance ofOhio's SIP as protective ofthe 1-hour ozone NAAQS given alleged lax or ineffective monitoring and enforcement of Hamilton County's largest polluters by
state authorities and their designates.

Another commenter argues thatthe maintenance plan is alsonot approvable because itlacks enforcement programs and commitments ofresources as required bythe Clean Air Act.42 U.S.C. 7410(a)(2)(E). The commenter claims that EPA simply assumes that the various measures relied on for future emission reductions will continue to be implemented. Without explicit commitments oflegal authority and

resources to implement all ofthose

measures, the commenter argues that the maintenance plan is not approvable.

Response 5: Regardless ofany alleged implementation issues, the area is attaining the 1-hour ozone standard. In fact, the entire state of Ohio is now in attainment for ozone. The commenter noted that the ozone monitor in Middletown has recorded exceedances ofthe NAAQS. The monitoring data for the area show that during the 1997- 1999 time period, an exceedance occurred once in 1997 and once in 1999. This averages out to 0.67 expected exceedances during the 1997-1999 time period. This is below 1.0 and shows that the monitor is monitoring attainment of the 1-hour ozone standard.

The CAA requires the area to have a fully approved SIP and to have met all ofthe applicable requirements of the CAA. The area's SIP satisfies these requirements as described in EPA's proposed rulemaking published on January 24, 2000 (65 FR 3630). The

measures that Ohio is relying on to maintain the 1-hour ozone standard have been approved into the SIP and are state and federally enforceable. See references to approved SIP in the January 24, 2000 proposed rulemaking. The state must continue to implement these measures as provided forin the federally approved SIP.

Ohio has committed to select and implement the maintenance plan contingency measures within 12 months ofa violation ofthe 1-hour ozone standard. See April 14, 1995 letterfrom Donald Schregardus, OEPA to David Kee, EPA, for further information. The

commenter provided no evidence that the maintenance plan fails to satisfy section 110(a)(2)(E). The CAA does not require a separate level ofenforcement for amaintenance plan as a prerequisite

to redesignation. The enforcement
program approved for and applicable to the SIP as a whole also applies to the maintenance plan.

Redesignation to attainment for ozone does not suspend the implementation of the existing VOC Reasonably Available Control Technology (RACT) rules for the

sources in the area. These rules will continue to be in place to provide for maintenance of the 1-hour ozone standard.

In 1980, EPA approved the Ohio

ozone SIP as meeting all ofthe requirements ofsection 110, which 

### 37881

HeinOnline -- 65 Fed. Reg. 37881 2000Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

included section 110(a)(2)(F), the predecessor ofcurrent section 110(a)(2)(E). See 40 CFR 52.1873. EPA has consistently interpreted section 107(d)(3) as permitting the Agency to rely on prior approvals ofSIP provisions when reviewing redesignation requests. A memorandum to its Regional Offices from John Calcagni, Director ofthe Air Quality Management Division, dated September 4, 1992, (Calcagni Memorandum) describes procedures that EPAregions should use to evaluate requests to redesignate areas to attainment status. The memo states:

"An area cannot be redesignated ifa required element ofitsplan is the subject ofa disapproval * * * However, this does not mean that earlier issues with regard tothe SIP will be reopened. Regions should not reconsider those things thathave already been approved and for which the Clean Air Act Amendments did not alterwhat is required."

EPA does not need toreconsider the issue ofwhether the Ohio SIP meets section 110(a)(2)(E) requirements prior
to redesignation. Southwestern PennsylvaniaGrowthAlliancev. Browner,144 F.3d 984 (6th Cir. 1998).

Even ifviolations subsequently occur, this does not conclusively establish that
state enforcement is so inadequate as to make the state enforcement program deficient under the Clean Air Act.EPA has not yet made such a finding, and

evenifthe area isredesignated, EPA retains authority to make a finding of failure toimplement under section 173(b) ofthe Clean Air Act or to require

a SIP revision under section 110(a)(2)(H) ifitconcludes that state implementation and enforcement is deficient. The State would thus remain subject toEPA authority toimprove its enforcement

even after the area is redesignated. For purposes ofredesignation, the area has

afully approved SIP.

In addition,EPA notes that in
response to petitions filed by the
commenter and others (alsoreferred to in Comment 16), EPAis currently conducting a comprehensive review of the programs cited in those petitions as amended and supplemented. Any implementation deficiencies EPAfinds in this review willbe addressed and corrected in contexts apart from the redesignation procedure that is the subject ofthis rulemaking. See also Responses 16 and 24. EPA also recently advised the state ofOhio that, "as amendedby the Ohio Legislature and interpreted by Ohio's Attorney General, Ohio's Audit Privilege and Immunity Law shouldnot present a barrier to continued authorization offederal environmental programs in Ohio." Letter dated June 18, 1999 from Steven A. Herman, Assistant Administrator to Betty D. Montgomery, Attorney General, State ofOhio, andChristopher Jones, Director, OEPA. Comment6:The commenter claims that the legal requirements for redesignation have not been met.The prerequisites for redesignating a nonattainment area to attainment are set forth in section 107(d)(3)(E) ofthe CAA, 42 U.S.C. 7407(d)(3)(E). Section 107(d)(3)(E)(i) ofthe CAAprohibits a redesignation to attainment unless EPA determines thatthe area has attained the

ozone NAAQS. The commenter states that although EPA's Aerometric Information Retrieval System (AIRS) data does not show NAAQS violations in 1996-1998, EPA has not determined that the area has attainedthe standard,

nor can itdo so.

In its recent rulemaking adopting Tier 2Motor Vehicle Emission Standards, EPA listed the Cincinnati-Hamilton area

as "certain orhighly likely to require additional emission reductions in order
to attain and maintain the 1-hour ozone NAAQS." 65 FR 6698, 6710 (February 10, 2000). The commenter alleges that EPA cannot determine thatthis area has attained the standard when ithas explicitly found that the area requires additional emission reductions to attain andmaintain the NAAQS. Further, the
commenter states thatEPA has not shown that emission reductions from the Tier 2motor vehicle and gasoline sulfur standards will be substantial enough, or occur soon enough, to produce timely attainment and maintenance.

EPA's own projections, the
commenter argues, undermine any claim thatthe recent absence of violations is dueto permanent and enforceable emission reductions.

According to the commenter,
moreover, any emissions benefits attributed to the Tier 2 standards and gasoline sulfur requirements must be offsetby reductions that EPA's projections assumed would occur from the NOx SIP call and othermeasures that cannot yet be credited because they

are not enforceable asthings stand now, andthat EPA cannot approve the maintenance demonstration without first conducting new modeling to account forthe foregoing concerns. Furthermore, any such modeling (or reanalysis ofexisting data) must be subject to full public notice and
commentbefore final EPA action onthe redesignation proposal.

Response6:The Cincinnati-Hamilton

area has monitored attainment ofthe 1- hour ozone standard for both the 1996- 1998 and 1997-1999 time periods. The

area is well monitored. There are 10

ozone monitors in operation throughout the seven county area. This monitoring clearly demonstrates that the air quality in the area has improved andthat the

area is attaining the 1-hour ozone standard. Also, see discussion forTable 3in response below summarizing the air quality data from 1987 to 1999. The fact that attainment has lasted over a fouryear period is strong evidence thatit is attributable to emission reductions and
notmerely favorable meteorology.

Any emissions and ozone modeling system usedto predict future ozone involves approximations and uncertainties at each stage: historical emission inventory estimation, growth and control projection, transport modeling, and photochemical modeling. Model predictions are best treated as indicators ofrisk,rather than as absolute forecasts. Inthe Tier 2 rulemaking, we used a regional ozone modeling system to predict ozone in
many cities, as part of an interpretative
process to characterize the risk that there would be nonattainment in a large and geographically broad number of

areas. While ozone predictions andthe characterization ofthe risk of nonattainment in individual areas was a step toward reaching a conclusion about risks across the group ofareas, that characterization was not an Agency finding ofviolations for any specific

area.

In the Tier 2rulemaking, no area was characterized asbeing highly likely to require more emission reductions for attainment and maintenance unless the

ozone modeling predicted a future exceedance and actual air quality data indicated nonattainment between 1995 and 1998. An area withmonitored attainment in 1995 to 1998 was atworst characterized ashaving a moderate risk offuture nonattainment, and only ifit

came within 10 percent ofhaving a NAAQS violation in the 1995 to 1998 period. Atthe time, we used 1995-1998 (twothree-year periods), so the Cincinnati-Hamilton area was included in the list ofareas highly likely to need

more reductions. The Tier 2modeling did not have available to itthe 1999 air quality data which shows that the area is continuing to attain the ozone standard. Withthe 1999 data, application ofthe same method would result in itbeing characterized as having only amoderate risk ofneeding additional emission reductions to avoid nonattainment sometime in the 2007 to 2030 period. Amoderate risk of nonattainment is not inconsistent with EPA approval ofthe maintenance plan. 

### 37882

HeinOnline -- 65 Fed. Reg. 37882 2000Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

In the Tier 2method, we also deferred
to local attainment demonstration and weight ofevidence conclusions wherever they existed and indicated attainment by 2007, moving even areas with both predicted 2007 exceedances and actual 1995-1998 violations to a "significant risk" list in those cases where we had proposed approval ofan attainment demonstration, based on weight ofevidence considerations, without requiring additional emission reductions. In the case ofthe CincinnatiHamilton area, there is no local modeling or weight ofevidence analysis indicating future attainment, but there is data showing attainment now, and emission inventory projections that show thattotal NOx and VOC emissions decline between 1996 and 2007. Actual local data showing attainment over four years, combined with a downward trend in total emissions, is an even stronger basis for not relying completely on the Tier 2ozone modeling.

With respect to maintenance ofthe 1- hour ozone standard, the Tier 2 modeling showed a downward trend in

ozone from 1996 to 2007 in the Cincinnati-Hamilton area, even without Tier 2reductions. The Tier 2reductions

are the type of additional reductions that will help ensure maintenance for the next 10years. Comment7:Pursuant to section 107(d)(3)(E)(ii) ofthe Clean Air Act, EPA cannot redesignate an area to attainment unless EPA "has fully approved the applicable implementation plan for the area." The
commenter contends that EPAhas yet to fully approve the applicable implementation plan for the CincinnatiHamilton area. The commenter maintains that among otherthings, EPA has yet to fully approve the moderate

area ozone SIP for this area and has also failed to fully approve the following specific SIP elements required by the Clean Air Act:

A. Attainmentdemonstration: The Clean Air Act requires the moderate

area SIP submittal toinclude an attainment demonstration based on photochemical grid modeling or other analytical method determined by EPAto be atleast as effective. 42 U.S.C. 7502(c)(1), (c)(6), 7511a(b)(1), 7511a(j). EPA has not approved an attainment demonstration for this area as required by the CAA.

B. All ReasonablyAvailable Control Measures(RACM): EPAhas not approved a demonstration that the SIP provides for implementation ofall reasonably available control measures as expeditiously as practicable. 42 U.S.C. 7502(c)(1). The commenter argues that EPA has no authority to waive this requirement, which applies in addition
to therequirement to demonstrate timely attainment.

C. RACT: The Clean Air Act requires the SIP to mandate Reasonably Available Control Technology for all VOC sources within the nonattainment
area, including all sources covered by Control Technique Guideline (CTG) documents. 42 U.S.C. 7502(c)(1), 7511a(b)(2). EPAhas not fully approved the SIP asmeeting this requirement, and concedes thatthe requirement has not been met with respect to the Ohio portion ofthe nonattainment area. 65 FR 3636. The commenter argues thatEPA is without authority to waive this explicit requirement for SIPs, and cannot deem it tobe met by the state's commitment
to adopt such measures in the future if needed as maintenance plan contingency measures. The CAA makes clear thatRACT (including, specifically, RACT specified in Control Technique Guidelines (CTGs)) is aminimum level ofcontrol technology thatmust be included in all moderate area SIPs. It is
not an optional control strategy that can be deferred until "needed" for attainment ormaintenance. For these
reasons, the commenter challenges the legal validity ofEPA's prior guidance suggesting thatunimplemented and "unneeded" RACT might be moved to

an area's maintenance plan as a contingency measure.

Further, the commenter declares, even the prior guidance requires thatRACT be fully adopted, submitted, and approved byEPA before redesignation: it does not allow a state to defer adoption ofRACT requirements. The
commenter contends thatEPA's justification for making an exception to the requirement for full adoption here is irrational andmeritless. The fact that the RACT rules are supposedly not needed for attainment and maintenance is a factor thatwas assumed in the original guidance as well, otherwise there would have been no basis for even considering the idea of allowing deferred implementation.

Equally irrelevant, saysthe commenter, isEPA's claim thatgreater emission reductions canbe achieved by other contingency measures in the area's maintenance plan. The commenter argues that EPAwas aware ofthis possibility aswell at the time ofitsprior guidance, and thatthe purpose of requiring full adoption prior to redesignation was to provide assurance that this mandatory level ofcontrol already required in almost all other

ozone nonattainment areas would no longer be deferred where additional emission reductions were clearly needed, and wouldbe subject to immediate implementation (rather than requiring potentially years ofstate rulemaking and EPAreviews). As itis, Ohio has not committed to ever adopt the full range ofmandated VOC RACT, onlyto consider it as one contingency

measure option in the maintenance plan.

Response 7:The Cincinnati-Hamilton

area has satisfied all applicable ozone requirements andhas a fully approved

ozone SIP. In acting on a redesignation request, EPA may rely on any prior SIP approvals plus any additional approvals itmay perform in conjunction with acting on the redesignation. EPA isfully approving any remaining portions ofthe SIP thatmust be approved prior to redesignation in conjunction with this action. Therefore, the Ohio SIP is fully approved. See "Procedures for Processing Requests to Redesignate Areas toAttainment," John Calcagni, Director, Air Quality Management Division, September 4, 1992, page 3. The Calcagni memorandum allows for approval ofSIP elements and redesignation to occur simultaneously, and EPAhas frequently taken this approach inits redesignation actions.

In response to comment 7A onthe attainment demonstration, an attainment demonstration isnot required under EPA's attainment determination policy. EPAhas explained at length in other actions its rationale for the reasonableness ofthat interpretation ofthe Clean Air Act and incorporates those explanations by reference here. See, for example, 61 FR 20458 (Cleveland-Akron-Lorain, Ohio)(May 7, 1996); 60 FR 36723 (July 18, 1995)(Salt Lake and Davis Counties, Utah); 60 FR 37366 (July 20, 1995), 61 FR 31832-33 (June 21, 1996)(Grand Rapids, MI).

EPA also reiterates its position set forth in the proposed rulemaking. Subpart 2ofpart D ofTitle I ofthe CAA contains various air quality planning and SIP submission requirements for

ozone nonattainment areas. EPA believes itisreasonable tointerpret provisions regarding Reasonable Further Progress (RFP) and attainment demonstrations, along with certain other related provisions, so asnot to require SIP submissions ifan ozone nonattainment area subject to those requirements is monitoring attainment ofthe ozone standard (i.e., attainment of the NAAQS demonstrated with three consecutive years ofcomplete, qualityassured, air quality monitoring data). EPAhas interpreted the general provisions ofsubpart 1ofpart D ofTitle I (sections 171 and 172) so asnot to require the submission ofSIP revisions 

### 37883

HeinOnline -- 65 Fed. Reg. 37883 2000Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

concerning RFP, attainment demonstrations, or section 172(c)(9) contingency measures. As explained in

amemorandum fromJohn S. Seitz, Director, Office ofAir Quality Planning and Standards, entitled "Reasonable Further Progress, Attainment Demonstration, andRelated Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard," dated May 10, 1995, EPA believes it is appropriate tointerpret the more specific attainment demonstration and related provisions of subpart 2in the

same manner. (See SierraClubv. EPA, 99 F.3d 1551 (10thCir. 1996))

The attainment demonstration requirements of section 182(b)(1) are that the plan provide for "such specific annual reductions in emissions * * * as necessary to attain the national primary ambient air quality standard by the attainment date applicable under the CAA." Ifan area has in fact monitored attainment ofthe relevant NAAQS, EPA believes there isno need for an area to make a further submission containing additional measures to achieve attainment. This is also consistent with the interpretation ofcertain section 172(c) requirements provided by EPAin the General Preamble to Title I.As EPA statedin the Preamble, no other

measures to provide for attainment would be needed by areas seeking redesignation to attainment since "attainment will have been reached" (57 FR 13564). Upon attainment ofthe NAAQS, the focus ofstate planning efforts shifts tothe maintenance ofthe NAAQS andthe development ofa maintenance plan under section 175A.

Similar reasoning applies to other related provisions of subpart 2.The first ofthese are the contingency measure requirements of section 172(c)(9) ofthe CAA. EPA haspreviously interpreted the contingency measure requirement of section 172(c)(9) as no longer being applicable once an area has attained the standard since those "contingency

measures are directed at ensuring RFP and attainment by the applicable date" (57 FR 13564).

The state must continue to operate an appropriate air quality monitoring network, in accordance with 40 CFR part 58, to verify the attainment status ofthe area. The air quality data relied
upon to determine that the area is attaining the ozone standard must be consistent with 40 CFR part 58 requirements and other relevant EPA guidance and recorded in EPA's AIRS.

EPA has reviewed the ambient air monitoring data for ozone (consistent with therequirements contained in 40 CFR part 58 and recorded in EPA's AIRS) for the Cincinnati-Hamilton moderate ozone nonattainment area from the 1996 through 1998 ozone

seasons. This data is summarized in Table 3. Monitoring data for 1999 show the area continues to attain the 1-hour

ozone NAAQS. On the basis ofthis review, EPA determines that the area has attained the 1-hour ozone standard duringthe 1996-98 period, aswell as the 1997-1999 period (the most recent three-year time period ofair quality monitoring data), andtherefore isnot required to submit an attainment demonstration and a section 172(c)(9) contingency measure plan and does not need any othermeasures to attain the 1- hour ozone standard.

In response to comments 7B and C,

no additional RACM controls beyond what are already required in the SIP are necessary for redesignation to attainment. The General Preamble (57 FR 13560, (April 16, 1992)) explains that section 172(c)(1) requires theplans for allnonattainment areas toprovide for the implementation ofRACM as expeditiously aspracticable. EPA interprets this requirement toimpose a duty on all nonattainment areas to consider all available control measures andto adopt and implement such

measures as arereasonably available for implementation in the area's attainment demonstration. Because attainment is reached no additional measures are needed toprovide for attainment.

The suspension ofthe attainment demonstration requirements pursuant to

our determination of attainment includes the section 172(c)(1) RACM requirements aswell. The General Preamble treatsthe RACM requirements

as a "component" ofan area's attainment demonstration. Seereference above. Thus,the suspension ofthe attainment demonstration requirement pursuant to our determination of attainment applies to the RACM requirement, since itis a component of the attainment demonstration.

As discussed in theproposed rulemaking, Ohio has completed adoption of stationary source RACT requirements for the CincinnatiHamilton moderate ozone nonattainment area. EPA has approved these RACT regulations in prior rulemakings. Seerulemakings for Ohio dated April 25, 1996 (61 FR 18255), September 7, 1994 (59 FR 46182) and October 23, 1995 (60 FR 54308). The requirement forRACT based on new CTGs in Ohio is satisfied bythe listing ofnew CTGs in the maintenance plan as contingency measures. See discussion in EPA's proposed rulemaking on this action. EPA's rationale has been explained at length in the Grand Rapids, Michigan redesignation actions of proposed and final rulemakings dated April 2, 1996 (61 FR 14522), June 21, 1996 (61 FR 31833-31834, 31843- 31847), andis incorporated by reference here.

Ohio has demonstrated that the Cincinnati-Hamilton area does not require the new CTG RACT rules for either attainment or maintenance. If EPAwere to require the State to fully adopt these rules priorto redesignation, the State would still be entitled tohave the rules become a part ofthe contingency measures in the maintenance plan upon approval ofthe redesignation. EPA'spolicy allows that

eventhose measures which havebeen adopted maybe moved into the area's maintenance plan as contingency

measures ifthey are notyet implemented and not necessary for maintenance ofthe standard. September 17, 1993 Memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, entitled, "SIP Requirements for Areas Submitting Requests for Redesignation to Attainment", Detroit redesignation with respect to Stage I (March 7, 1995, 60 FR 12459).

Consequently, requiring full adoption prior to redesignation would notlead to implementation ofthe measures, and would notimpose a minimum level of technology as the commenter suggests. The only difference between the commenter's approach and EPA's is that EPA, as in the case ofGrand Rapids, is permitting Ohio to place a commitment
to adopt measures, ratherthan fully adopted measures, in its maintenance plan. This approach is fully consistent with EPA's longstanding practice, set forth in the September 1992 Calcagni memorandum, that in general, contingency measures need not be fully adopted. EPAbelieves that this approach is also consistent with the requirements ofthe CAA.

EPA has previously addressed the issue ofwhether Clean Air Act requirements, such as RACT, must be implemented after an area hasbeen redesignated, and whether EPA's longstanding policy of allowing states to convert mandatory control measures to contingency measures is authorized. See, for example, redesignation of Detroit dated March 7, 1995 (60 FR 12459, 12470). The CAA contains many requirements that States must adopt certain measures, including RACT, specifically fornonattainment areas. Those requirements do not by their own terms continue to apply to an area after ithasbeen redesignated to attainment.

Moreover, nothing in section 175A itselfsuggests thatthese requirements
must continue tobe met in redesig

### 37884

HeinOnline -- 65 Fed. Reg. 37884 2000Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

nated areas. Section 175A(d) is specifically and clearly applicable to contingency provisions and their inclusion in a section 175A maintenance plan. Section 175A(d) establishes thatSIP revisions submitted under section 175A must contain contingency provisions, as may be necessary, to assure that the state will promptly correct anyviolation ofthe

ozone NAAQS that occurs after redesignation to attainment. Itfurther requires that these contingency provisions include arequirement for the
state toimplement all measures with respect to the control ofozone precursor emissions that were in the nonattainment SIP before the area was redesignated. This provision clearly demonstrates that section 175A(d) contemplates thatthere maybe unimplemented control measures in the SIP prior toredesignation thatwill be shifted into the maintenance plan as contingency measures. Nothing in section 175A suggests that the measures that may be shifted into the contingency plan do not include programs mandated by the Act when the area was designated nonattainment. As section 175A(a) requires that measuresbe adopted andimplemented to ensure maintenance, it indicates thatmeasures may not be converted to contingency provisions unless the State demonstrates thatthe standard will be maintained in the absence ofthe implementation of suchmeasures. Ohio has shown thatit can maintain the standard without the unimplemented

measures. Thus EPAbelieves thatits policy withrespect to allowing

measures tobe placed into the contingency plan meets the requirements ofthe Act.
Comment8: The commenter asserts that EPA has not determined thatthe
motor vehicle emissions budget for the Cincinnati-Hamilton area SIP is adequate for attainment (and maintenance), and states thatthe CAA andEPA rules and guidance preclude EPA from approving an attainment demonstration SIP unless the SIP includes amotor vehicle emissions budget thatEPA determines to be adequate.

Response8:The commenter is correct that EPArules and guidance preclude the final approval ofan attainment demonstration, maintenance plan or other control strategy SIP before the mobile source emission budget in the plan meets the adequacy criteria in the transportation conformity rule. EPA posted the Ohio maintenance plan SIP
to EPA's adequacy web site on January 7, 2000 and the Kentucky maintenance plan SIP to the adequacy web site on November 29, 1999.

The adequacy web site at www.epa.gov/oms/transp/conform/ adequacy.htmis available to the public
to allow notice and comment onthe adequacy ofmobile source emission budgets in submitted control strategy SIPs. The comment period onthe maintenance plan SIPs has closed without receipt ofany negative
comments. Letters ofadequacy have been issued andwill be posted onthe web site. EPA found the mobile source emission budgets adequate on April 27, 2000, andMay 24, 2000, for Ohio and Kentucky respectively.

As a general matter, it should be noted that EPA alsoproposes and approves transportation conformity budgets through theregular Federal Register notice and comment process. The public therefore has several opportunities to comment onthe approvability ofmobile source emission budgets: First, atthe state level during the state public comment period on the SIP; second at the federal level during the adequacy posting ofthe submitted SIP; andthird during the Federal Register proposed approval ofthe SIP with mobile source budgets. In some cases, the proposed approval andthe adequacy posting may occur atthe same time or concurrently. The adequacy and approvability ofthe mobile source budget is evaluated during this time frame andbefore the final approval of the control strategy SIP with approved budgets.

The public should note, however, that
not all submitted SIP budgets will be posted onthe adequacy web site and go though the adequacy process, although allbudgets must meetthe adequacy criteria in the transportation conformity rule before being approved. The adequacy process is available so that budgets can be found adequate andbe used for conformity purposes before the SIP is approved.

Ifa control strategy SIP with abudget has already been approved for an area and anew SIP with anew budget is submitted that covers the same requirements andtime frame asthe approved SIP, then the new SIP would
not be posted for adequacy because the

new submittedbudget could not replace the approved budget without full Federal Register notice and comment. For example, when Ohio wants to allocate the safety margin in a maintenance plan tothe mobile source emissions budget in the current maintenance plan, the new maintenance plan budget would not needto be posted to the adequacy web sitebecause

an approved maintenance plan budget would already be in place.The new SIP submittal with the new budget does, however, go through full notice and
comment rulemaking before the budget

canbe used for transportation conformity.

Comment9:The commenter argues thatthe SIP does not include conformity procedures as required by the CAA, and thatEPAhas no authority whatsoever to waive this mandatory requirement for SIPs. The commenter contends thatthe CAA allows redesignation to attainment onlywhere EPAhas fully approved the implementation plan and only where the state "has met all requirements applicable to the area" under section 110 and part D.

Response9:The State ofOhio and the State ofKentucky have met the statutory requirement for submitting approvable general conformity procedures. EPA approved the Ohio general conformity rules effective on May 10, 1996 (61 FR 9644). EPA approved the Kentucky general conformity rules effective on July 27, 1998 (63 FR 40044). Section 176(c) provides that state conformity revisionsmust be consistent with Federal conformity regulations that the CAA requires EPAtopromulgate. The Federal general conformity regulations were finalized onNovember 30, 1993, andthe Federal transportation conformity regulations were finalized

on November 24, 1993. The Federal general conformity regulations have remained the same since thattime, but the Federal transportation conformity regulations have been amended several times since 1993.

EPA conditionally approved the Ohio transportation conformity rules on May 16, 1996 (61 FR 24702). Ohio met the condition ofthe approval by submitting rule changes within the specified one year time frame. The Federal transportation conformity regulations

were amended onAugust 15, 1997 (40 CFR parts 51 and 93 Transportation Conformity Rule Amendments: Flexibility and Streamlining). Ohio submitted newtransportation conformity rules on October 6, 1999, in
response to the 1997 changes to the Federal transportation conformity regulations. However, the Ohio rules will need to be revised again dueto the March 2, 1999 court decision (Environmental DefenseFundv. EnvironmentalProtectionAgency, U.S. Court ofAppeals District ofColumbia Circuit, No. 97-1637) which rescinded several sections ofthe Federal transportation conformity rule and asked EPAtorevise several sections of the Federal rule. Kentucky submitted transportation conformity rules in 1994, 

### 37885

HeinOnline -- 65 Fed. Reg. 37885 2000Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

but EPA has not acted upon the rules andthe rules mustbe revised to be consistent with the amendments and
courtrulings.

EPA believes itis reasonable to interpret the conformity requirements as not applying for purposes ofevaluating the redesignation request under section 107(d). The rationale for this isbased on
a combination oftwo factors. First, the requirement to submit SIP revisions to comply with the conformity provisions ofthe Clean Air Act continues to apply
to areas after redesignation to attainment, since such areas would be subject to a Section 175A maintenance plan. Second, EPA's Federal conformity rules require the performance of conformity analyses in the absence of federally approved state rules. Therefore, because areas are subject to the conformity requirements regardless ofwhether they are redesignated to attainment and must implement conformity under Federal rules ifstate rules are not yet approved, EPAbelieves it isreasonable toview these requirements as not applying for
purposes ofevaluating a redesignation request. See, for example Grand Rapids redesignation at 61 FR 31835-31836 (June 21, 1996).

EPA has explained itsrationale and applied this interpretation in numerous redesignation actions. See, Tampa, Florida and Cleveland-Akron-Lorain redesignations 60 FR 52748 (December 7, 1995), and 61 FR 20458 (May 7, 1996), respectively. Consequently, EPA may approve the ozone redesignation request for the Cincinnati-Hamilton area notwithstanding the lack ofafully approved conformity SIP.

Comment10:The commenter asserts that neither the states norEPA have shown that air quality improvements are dueto permanent and enforceable emission reductions, as required by 42 U.S.C. 7407(d)(3)(E)(iii). The commenter takes issue with the finding thatthis criteria is metbecause the states have adopted measures that have produced

some emission reductions. The
commenter believes EPA has not demonstrated that these reductions are responsible for the area's improved air quality or the absence ofviolations, claiming thatthe only way to reliably make such a showing would be through photochemical grid modeling. No such modeling ispresented or discussed in this proposal.

The commenter states that given the complex chemistry and meteorology of

ozone formation, the combination of NO, andVOC emission reductions that might be attributable tothe cited

measures could just as easily lead to increases in ozone concentrations. The lack ofviolations in 1996-1998, the
commenter states, couldjust as wellbe dueto weather patterns or changes in transport ofozone precursors. Without modeling to determine the actual impact ofadopted and enforceable controls, the
commenter finds EPA's claim to be speculative.

Response 10:We disagree with the
commenter. We believe that photochemical grid modeling isnot necessary to show thatthe improvement in air quality is due topermanent and enforceable emissions reductions. Our policy does not specifythat photochemical grid modeling must be done in ozone nonattainment areas to meet this requirement. See General Preamble forthe Interpretation ofTitle I ofthe CAA Amendments of1990, 57 FR 13496 (April 16, 1992), supplemented at 57 FR 18070 (April 28, 1992); "Procedures for Processing Requests to Redesignate Areas to Attainment," John Calcagni, Director, Air Quality Management Division, September 4, 1992; "State Implementation Plan (SIP) Requirements for Areas Submitting Requests for Redesignation to Attainment ofthe Ozone and Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) on or after November 15, 1992," Michael H. Shapiro, Acting Assistant Administrator for Air andRadiation, September 17, 1993; and "Use ofActual Emissions in Maintenance Demonstrations for Ozone and CO Nonattainment Areas," D. Kent Berry, Acting Director, Air Quality Management Division, November 30, 1993.

Our policy allows an area to meet this requirement by showing how its ozone precursor emissions changed due to permanent and enforceable emissions reductions from when the area was not monitoring attainment ofthe 1-hour

ozone NAAQS to when it reached attainment.

Reductions in ozone precursor (volatile organic compounds and nitrogen oxides) emissions have brought
many areas across the country into attainment. EPAhas approved many

ozone redesignations showing decreases in ozone precursor emissions resulting in attainment ofthe ozone standard. See redesignations for Charleston (59 FR 30326, June 13, 1994; 59 FR 45985, September 6, 1994), Greenbrier County (60 FR 39857, August 4, 1995), Parkersburg (59 FR 29977, June 10, 1994; 59 FR 45978, September 6, 1994), Jacksonville/Duval County (60 FR 41, January 3, 1995), Miami/Southeast Florida (60 FR 10325, February 24, 1995), Tampa (60 FR 62748, December 7, 1995), Lexington (60 FR 47089, September 11, 1995), Owensboro (58 FR 47391, September 9, 1993), Indianapolis (59 FR 35044, July 8, 1994; 59 FR 54391, October 31, 1994), SouthBend-Elkhart (59 FR 35044, July 8, 1994; 59 FR 54391, October 31, 1994), Evansville (62 FR 12137, March 14, 1997; 62 FR 64725, December 9, 1997), Canton (61FR 3319, January 31, 1996), Youngstown-Warren (61 FR 3319, January 31, 1996), Cleveland-Akron-Lorain (60 FR 31433, June 15, 1995; 61 FR 20458, May 7, 1996), Clinton County (60 FR 22337, May 5, 1995; 61 FR 11560, March 21, 1996), Columbus (61FR 3591, February 1, 1996, Kewaunee County (61 FR 29508, June 11, 1996; 61 FR 43668, August 26, 1996), Walworth County (61 FR 28541, June 5, 1996; 61 FR 43668, August 26, 1996), Point Coupee Parish (61 FR 37833, July 22, 1996; 62 FR 648, January 6, 1997), and Monterey Bay (62 FR 2597, January 7, 1997). Most ofthe

areas that havebeen redesignated to attainment for the 1-hour ozone standard have continued to attain it. Areas that are not maintaining the 1- hour ozone standard have a maintenance plan tobring them back into attainment.

Reductions in ozone precursor emissions have been shown in photochemical grid modeling toreduce ambient ozone concentrations in areas

across the country. Between 1990 and 1996 area-wide VOC and NOx emissions in the Cincinnati-Hamilton area decreased by 18% and 6%, respectively. These emissions reductions are due to the Federal Motor Vehicle Emissions Control Program, fleet turnover of automobiles, implementation ofStage II
vapor recovery program, implementation ofVOC RACT, Federal requirements for lower Reid vapor pressure gasoline, use ofreformulated gasoline in Kentucky, ceased operation and improved technology at facilities in Kentucky, and partial implementation ofvehicle emission testing (E-Check)in Ohio.

Additional programs have been implemented in Kentucky since the 1996 attainment year. These programs include Stage II vapor recovery, vehicle emission testing program, and increased rule effectiveness of Stage Ivapor control. Additional Federal rules such

as architectural coatings, traffic paints,
auto body refinishing, and commercial/

consumer products rules have become effective.

Between 1990 and 1999 area-wide VOC andNOx emissions decreased by 24% and 9%, respectively. Ozone air quality monitoring data show thatthe 

### 37886

HeinOnline -- 65 Fed. Reg. 37886 2000Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

design value 2changed from 0.157 parts
per million (duringthe 1987-1989 time period) to 0.124 parts per million (duringthe 1996-1998 time period). This shows thatreductions in ozone concentrations correspond tothe reduction in ozone precursors emissions in the area.

The commenter claims that the combination ofNOx and VOC emissions reductions could justas easily have led
to increases in ozone. This claim is shown to not be trueby the actual monitoring data collected in the area showing that ambient ozone concentrations have dropped when this combination ofozone precursor reductions occurred. In other metropolitan areas, different levels of VOC and NOx reductions have also resulted in attainment. See areas listed above in first part ofthis response. The Cincinnati-Hamilton area's decrease in

ozone levels isconsistent with what other areas have experienced. The
commenter has not provided data showing that decreases in ozone precursor emissions have ledto higher levels ofozone.

The commenter claims that the lack of
violations during 1996-1998 couldjust

as well be due to weather patterns or changes in transport ofozone precursors, but does not supply any evidence to support this conclusion. We

use a three year period ofair quality to
account for changes in weather conditions. Weather conditions have a substantial effect on ozone concentrations, both in terms of increasing ozone and decreasing ozone. However, this effect is not controllable andEPA uses a three year average to account for changes in meteorology. In the case ofthe Cincinnati-Hamilton

area, the fact that the 1997-1999 time period also shows that the area continues to be in attainment ofthe

ozone standard increases our confidence that weather is not a controlling factor in the area's attainment.

Indeed, weather datafrom the National Oceanic andAtmospheric Administration shows that during the period at issue, weather conditions were not unusually favorable toward low

ozone concentrations in the CincinnatiHamilton area. This data is summarized
in Tables 1 and 2.

2The design value is typically the fourth highest

ozoneconcentration recorded at amonitor over a three yearperiod. This value iscalculated for each monitor and the highest value isthe design value for the area. TABLE 

### 1. RANKED TEMPERATURE FOR MAY TO SEPTEMBER PERIODS
VERSUS 

### 1895-1998 LONG-TERM

AVERAGE

Tempera- Temperature rank for ture rank for

northern southwest Kentucky Ohio

1987

.................. 96 94 1988

.................. 62 80 1989

.................. 13 18 1993

.................. 52 58 1994

.................. 20 28 1995

.................. 67 64 1996

.................. 36 35 1997

.................. 8 6 1998

.................. 85 88 1999

.................. 78 83

TABLE 

### 2. COMPOSITE TEMPERATURE ANOMALIES FOR MAY TO SEPTEMBER PERIODS VERSUS 

### 1950- 

### 1995 AVERAGE

Tempera- TemperaThree-year pe- ture anom- ture anom- riod of May-Sep- aly for aly for

tember data northern southwest Kentucky Ohio

1987-1989

........ 0.72 0.49 1993-1995

........ 0.21 -0.02 1995-1997

........ -0.30 -0.81 1996-1998

........ -0.02 -0.56 1997-1999

........ 0.64 0.07

Table 1 shows the rank ofthe average temperatures over the May to September period for certain years compared to data from 1895 to 1998. A rank of 104 is given to the hottest year and arank of1 is given to the coolest year. Table 2 shows how the average temperature (in degrees Fahrenheit) over three year periods compared to a long-term average oftemperature. This shows that for the 1996-1998 time period, average temperatures in Kentucky were close to the long-term average and Ohio's temperatures were only half a degree below average. The 1996-1998 period had slightly warmer average temperatures than the 1995-1997 time period and slightly cooler average temperatures than the 1993-1995 time period. During the 1995-1997 and 1993-1995 time periods, monitoring data show that the area was in violation ofthe 1-hour ozone standard. During the 1997-1999 time period, temperatures averaged about a halfdegree above
average in Kentucky and were average in Ohio. Ozone monitoring data for this time period show that the area was in attainment ofthe 1-hour ozone standard. These temperatures are comparable to the average during the 1987-1989 time period used to classify the area as amoderate ozone nonattainment area under the Clean Air Act.

Table 1 shows how the temperature rankings havevaried from year toyear. Note that 1998 and 1999 are ranked higher than 1995, when the area last experienced two exceedances at a monitor during a single year.

This data shows that the weather conditions were not unusuallyfavorable towards lower levels ofozone, and that the area has continued to attain the 1- hour standard even with weather that

was slightly warmer than average and comparable to when the area was originally classified as moderate nonattainment. The combination ofthis analysis ofthe meteorological conditions in conjunction with the existence ofpermanent and enforceable emission reductions demonstrates that the improvement in air quality is dueto permanent and enforceable emission reductions.

In lightofthis information, EPA believes itisreasonable not to require photochemical grid modeling. Threeyear averaging addresses variations in meteorological conditions, and the
commenter haspresented no evidence thatthe three year attainment period

was unusually favorable. We have looked at the weather and determined thatitwas not unusually favorable. Itis important to note that, redesignation is
notintended as an absolute guarantee thatthe area will never monitor future violations. This is what maintenance plan contingency measures are designed
to address and correct.

Comment 11:The commenter contends that the plan does not demonstrate maintenance forten years
as required by sections 107(d)(3)(E)(iv) and 175A ofthe Clean Air Act.EPA proposes to find maintenance not onthe basis ofmodeling, as required by the CAA,but on the presumption that the

area will always be in attainment if emissions remain at orbelow estimated 1996 levels. The commenter states that such apresumption is not rationally supportable. The area violated the NAAQS in the 1995-1997 period. Therefore, the commenter reasons, holding emissions to 1996 levels does
not assure attainment.

The commenter avers that, even assuming the emission reductions predictedby the states for 1999 and subsequent years, there is no technical analysis inthe record demonstrating thatthose emission levels will assure maintenance. Such a demonstration requires photochemical grid modeling that accounts for thekinds ofweather conditions and transport impacts experienced on appropriately chosen design days. See 65 FR 6711 (rejecting 

### 37887

HeinOnline -- 65 Fed. Reg. 37887 2000

### Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

use ofrollback analysis for making attainment and nonattainment predictions). According tothe commenter, until EPA approves such a modeling demonstration, it cannot approve the maintenance plan.

The commenter argues thatthe history ofthis nonattainment area shows thatEPA cannot rationally

assume that emission levels correlate with ozone levels in alinear or consistent fashion; the area did not violate the ozone NAAQS in the 1992- 94 period, but did subsequently violate the NAAQS when VOC emissions were supposedly lower.

Response11:Webelieve thatthe monitoring shows that the current level ofemissions is adequate to keep the area in attainment. Table 3 summarizes the number ofexceedances at each monitor in the area from 1987 through 1999. This Table shows the number of expected exceedances for each monitor for each year.A monitor has tomeasure

more than 1.0 average expected exceedances over a three year period to

cause a violation ofthe 1-hour ozone standard.3 See 40 CFR 50.9 and Appendix H. The Table shows thatthe number ofexceedances have decreased from what was monitored in the late 1980's. The violation monitored during the 1995-1997 time period wasjust slightly above the ozone standard and significantreductions in emissions have occurred to bring this level down to attainment. Likewise, emissions have decreased from the 1992-1994 time period, increasing the likelihood that the area will maintain the 1-hour ozone standard.

Since 1996 all ofthe monitors in operation recorded 1.0 exceedance or less each year. This averages out toless than 1.0 exceedance on average per year. This is clearly not a violation of the 1-hour ozone standard. The lasttime

a monitor recorded more than 1.0 exceedance was in 1995, when two exceedances were recorded at two ofthe monitoring sites in the area.The number ofmonitored exceedances has decreased as the amount ofemissions has decreased.

TABLE 3.-1-HOUR OZONE 

### NAAQS EXPECTED EXCEEDANCES INTHE CINCINNATI-HAMILTON, OHIO-KENTUCKY AREA FROM 1987 TO 1999.

Site/County 87 88 89 90 91 92 93 94 95 96 97 98 99

Middletown/Butler

....................... 0.0 6.5 0.0 2.0 0.0 0.0 1.0 0.0 2.0 1.0 1.0 0.0 1.0 Hamilton/Butler

........................... 0.0 4.1 0.0 0.0 0.0 0.0 1.0 0.0 1.0 0.0 0.0 0.0 1.0 389 M ain St./Clermont

............... 2.0 10.4 0.0 0.0 0.0 0.0 0.0

.......... .......... .......... .......... ......... .......... 4430 SR 222/Clermont

.......... .......... .......... .......... .......... .......... .......... .......... 1.0 1.0 0.0 0.0 1.0 1.0 11590 Grooms Road/Hamilton

.. 2.0 5.0 1.0 1.0 4.0 0.0 0.0 0.0 0.0 0.0 1.0 1.0 0.0 6950 Ripple Road/Hamilton

....... 2.0 0.0 0.0 1.0 1.1 0.0 0.0 0.0 1.0 0.0 0.0 0.0 0.0 Cincinnati (0019)/Hamilton
......... 3.0 5.0 1.2 0.0

.......... .......... .......... .......... .......... .......... .......... .......... .......... Cincinnati (0037)/Hamilton

.............................. 0.0 0.0 0.0 0.0 0.0 1.0 0.0 0.0 0.0

.......... Cincinnati (0040)/Hamilton

............. .............................................................................. .. 0.0 Lebanon (416 S. East St.)/Warren
........................................... 2.0 8.2 0.0 4.0 3.0 0.0 0.0 2.0 2.0 0.0

.......... .......... .......... Warren

................ ............................................................................... 1.0 1.0 0.0 Boone

......................................... 0.0 2.1 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 Campbell

.................................... 2.0 7.0 1.1 0.0 0.0 0.0 1.0 0.0 0.0 1.0 0.0 0.0 0.0 Kenton

........................................ 2.0 14.1 0.0 0.0 0.0 0.0 0.0 0.0 1.0 1.0 0.0 1.0 0.0

The area has monitored attainment for both the 1996-1998 and 1997-1999 time periods. This shows thatthe current level ofemissions is adequate tokeep the area in attainment during weather conditions as in pastyears associated with higher levels ofozone. In addition, the CAA does not presume thatthe area will always be in attainment. The CAA provides thatifthe area were to violate the 1-hour ozone standard, then the contingency measures in the maintenance plan wouldbe triggered. This would reduce the ozone precursor emissions and bring the area back into attainment.

Our policy allows areas to prepare an attainment emissions inventory corresponding to when the area monitored attainment. It also allows

areas toproject maintenance by showing that future emissions will staybelow the attainment emissions inventory.4 The attainment inventory estimates 1996

3 Expected exceedances take into actual monitored exceedances and account for days where there is missing data or the data was invalidated. emissions, which iswithin the 1996- 1998 time period ofattainment. Emissions are projected toremain below this level for the next 10 years.

Holding emissions at or belowthe level ofthe attainment inventory is adequate toreasonably assure continued maintenance ofthe 1-hour ozone standard. Reductions in ozone precursor emissions have been shown in photochemical grid modeling toreduce ambient ozone concentrations in areas

across the country. Photochemical grid modeling is not needed to show thatthe

area has attained or will maintain the standard. The air quality will be maintained bykeeping below the attainment emissions level, continuing
to monitor ozone levels, and having maintenance plan contingency measures available. Reductions in ozone precursor emissions have broughtmany

areas across the country into attainment.

4See "Use ofActual Emissions inMaintenance Demonstrations for Ozone and CONonattainment Many ofthe ozone areas for which EPAhas approved ozone redesignations haveused an emissions inventory approach to demonstrate maintenance. The majority ofareas have continued to maintain the 1-hour ozone standard using that approach. See redesignations cited inResponse 10. Emissions inventories canbe usedto project maintenance ofthe 1-hour ozone standard. As previously stated, ifthe attainment level ofemissions is not adequate to protect against aviolation and the area monitors a violation, then the contingency measures in the maintenance plan would be triggered to bring the area back into attainment. There are ozone monitors located in the Cincinnati-Hamilton area to ensure that the area's air quality remains below the level set by the 1-hour ozone standard.

The comment thatEPA should not

assume that "emission levels correlate with ozone levels in some sort oflinear

Areas," D. Kent Berry, Acting Director, Air Quality Management Division, November 30, 1993. 

### 37888

HeinOnline -- 65 Fed. Reg. 37888 2000Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

orconsistent fashion" isin effect a recommendation that future maintenance be tested assuming meteorological conditions that are more conducive to ozone formation than the conditions thathave prevailed in 1996
to 1999. No otherfactor is known to introduce an inconsistency between

ozone and emissions. The commenter protests that the area has not submitted

amaintenance demonstration based on

ozone modeling, and implicitly urges that the modeling assume 1995-type conditions, orworse. 5 However, ifa prospective maintenance demonstration

were performed with an ozone photochemical model following EPA guidance, the modeling would be allowed to use episode days from the 1996-1998 period, not 1995.Itis highly likely, ifnot certain, thatthe outcome would be a conclusion that attainment will be preserved through the required 10-year period. EPA believes this modeling guidance isreasonable and appropriate.

Comment12:EPAhas not fully approved the Stage IIvapor recovery program in the Ohio portion ofthe nonattainment area. EPA partially disapproved the programbecause itcan be suspended at the discretion ofthe Ohio EPA Director without obtaining EPA approval. 59 FR 52911 (October 20, 1994). The commenter contends that because ofthis discretionary suspension provision, EPAcannot credit any emissions reductions to the Ohio Stage II program, either with respect to the attainment demonstration or the maintenance demonstration.

Response12:EPA does not agree with the conclusion ofthe comment. EPA can give credit for the emissions reductions because the Stage II program hasbeen implemented in all areas where it was required in the state, including the Cincinnati-Hamilton area. EPA partially approved the Ohio Stage II plan because it contained all ofthe required criteria for an approvable Stage II plan. Furthermore, because EPA approved the
program into the state SIP, EPA has the authority to enforce the program provisions, ifnecessary.

The director's discretion provision, which states that the OEPA Director
may suspend the program at will, was disapproved by EPA. EPA's initial

concern regarding this provision was

over the potential for the OEPA Director
to not implement any one or all phases oftheprogram without first seeking EPA approval. The Ohio EPADirector, however, has not chosen to suspend the

5 Table 1shows that the average temperature conditions in the area were worse in 1998 and 1999 than in 1995. Stage II program in the CincinnatiHamilton area. EPAhas also established through discussions with OEPA enforcement staffthat the Stage II program is in operation in the Ohio portion ofthe Cincinnati-Hamilton area andhas been for a number ofyears.

EPA has reviewed the state's efforts to implement the Stage IIprogram in detail
at 62 FR 61241 (November 17, 1997). We believe that Ohio understands the need for VOC emission reductions from all source categories andhas implemented the Stage II program along with other VOC reduction measures to meet not only the spirit but also the letter ofthe ozone attainment plan. Since this measure ispart ofthe Federally approved SIP and isbeing implemented, it isproviding creditable emissions reductions contributing to attainment.

The Memorandum entitled, "State Implementation Plan Requirements for Areas Submitting Requests for Redesignation to Attainment ofthe Ozone and Carbon Monoxide (CO) NAAQS on or afterNovember 15, 1992," Michael Shapiro, Acting Assistant Administrator for Air and Radiation, dated October 14, 1994,

states:

"Stage IIvapor recovery remains an applicable requirement for moderate

ozone nonattainment areas until EPA promulgates on-board vapor recovery regulations. Section 202(a)(6) ofthe Act provides that once onboard regulations

are promulgated, the Stage IIregulations required under section 182(b)(3) areno longer applicable for moderate ozone nonattainment areas. Therefore, final redesignation for a moderate nonattainment area that occurs after EPA's onboard regulations are promulgated does not have to include a Stage II SIP control program."

On October 20, 1994, EPA partially approved and partially disapproved Ohio's SIP revision for implementation ofthe Stage II program (59 FR 52911). As stated in thatrulemaking action, with the exception ofparagraph 3745- 21-09(DDD)(5), EPA considers Ohio's Stage II program to fully satisfy the criteria setforth in the EPA guidance document for suchprograms entitled, "Enforcement Guidance for Stage II Vehicle Refueling Control Programs." EPA promulgated onboard rules on April 6, 1994 (59 FR 16292); therefore, pursuant to section 202(a)(6) ofthe CAA, Stage II is no longer required, and

afully approved program isnot a prerequisite for redesignation. However, the state has opted to include reductions in VOCs from the Stage II program as part ofits maintenance plan. Only those Stage II provisions previously approved by EPA are part ofthe CincinnatiHamilton area maintenance plan. See also similar determinations by EPAin the redesignations ofCleveland (60FR 31433, June 15, 1995; and 61 FR 20458, May 7, 1996) and Dayton (60 FR 22289, May 5, 1995).

Comment 13:The commenter argues thatunder 42 U.S.C. 7410(a)(2)(D)(i) the SIP must include provisions toprohibit emissions that will contribute significantly to nonattainment in, or interfere with maintenance by, any other state. The commenter asserts that EPAhas specifically determined that emissions from Ohio contribute significantly to ozone nonattainment in downwind states, and has issued a SIP call to require additional NOx controls in the Ohio SIP to address this problem. Ohio has not yet adopted the required SIP provisions. The commenter claims thatEPA seeks to gloss over this failure by noting that the NOx SIP call has been stayed by the D.C. Circuit. The
commenter complains that EPA has proposed to allow various Ozone Transport Region Statesto claim credit for SIP call reductions, notwithstanding the stay. Inthe Washington, D.C. area, for example, the commenter asserts that EPAis proposing to approve an attainment demonstration that relies heavily on ozone reductions that will follow from compliance with the NOx SIP call. The commenter argues thatin that context, EPA discounted the significance ofthe court ordered stay, asserting that the SIP call rule was still

on the books, and therefore mustbe given credence. 64 FR 70460, 70464, 70464-70465 (1999). The commenter states that EPAcannot rationally allow downwind states to claim credit for SIP call reductions, while allowing upwind
states to avoid adoption ofmeasures required for such reductions.

Response 13:For anumber of independent reasons, we view submissions under the NOx SIP call as notbeing applicable requirements for
purposes ofevaluating a redesignation request. First,because the NOx SIP call hasbeen stayed, submissions under it

were not due at the time the redesignation requests were submitted. Established EPApolicyholds that when evaluating a redesignation request, EPA does not consider whether the state has
met requirements that come due after submittal ofa complete redesignation request. See page 4 ofthe Calcagni Memorandum. This ground alone would be dispositive. EPA alsobelieves that

evenifthe revisions underthe NOx SIP call were dueprior to the redesignation requests, other grounds support considering these revisions to not be applicable requirements. 

### 37889

HeinOnline -- 65 Fed. Reg. 37889 2000Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

The requirement to submitrevisions under the NOx SIP call continues to apply to areas after redesignation to attainment. Therefore, the state remains obligated to submit these revisions even afterredesignation, and would risk sanctions for failure to do so. While redesignation ofan area to attainment enables the area to avoid further compliance with the requirements of section 110 and part D that are linked with an area's nonattainment status, the NOx SIP call requirements apply to both nonattainment and maintenance (attainment)areas. The NOx SIP call submissions are required not to address air quality in the designated CincinnatiHamilton ozone nonattainment area,but to reduce emissions affecting downwind

areas. They are not requirements linked with a particular nonattainment area's designation and classification.

The requirements linked with a particular area's designation and classification are the requirements that EPA believes are therelevant measures to evaluate in reviewing a redesignation request. Thus, evenifithad been due prior to the filing ofthe redesignation request, the NOx SIP call submission requirement could be construed not to be an applicable requirement for
purposes ofredesignation. This policy is consistent with EPA's existing redesignation policies regarding conformity and oxygenated fuels requirements, as well as with section 184 ozone transport requirements. See Reading, Pennsylvania proposed and final rulemakings, 61 FR 53174-53176 (October 10, 1996), 62 FR 24826 (May 7, 1997); Cleveland-Akron-Lorain, Ohio final rulemaking 61 FR 20458 (May 7, 1996); and Tampa, Florida final rulemaking at 60 FR 62748, 62741 (December 7, 1995).

Comment 14: The commenter states that the CAA explicitly requires the SIP
to include a preconstruction permit program for new major sources and modifications within the nonattainment

area (NSR program). 42 U.S.C. 7410(a)(2)(C), 7502(c)(4)&(5), 7503, 7511, 7511(a)(2)(C), and (b)(5). EPAhas
not fully approved an NSR program for the Ohio portion ofthe nonattainment

area. According to the commenter, this is not an optional program that EPAcan simplywaive ifnot "needed" for attainment. The Clean Air Act sets out the NSR mandate as an explicit SIP requirement, in addition to the requirement for demonstrating timely attainment.

Response 14: EPAbelieves that the Cincinnati-Hamilton area may be redesignated to attainment notwithstanding the lack ofafullyapproved NSR program meeting the requirements ofthe 1990 Clean Air Act amendments. This view hasbeen set forth byEPA in a memorandum from Mary Nichols, Assistant Administrator for Air andRadiation, dated October 14, 1994, entitled "Part D New Source Review (partD NSR) Requirements for Areas Requesting Redesignation to Attainment." Also, see Grand Rapids, Michigan redesignation (61 FR 31834- 31837, June 21, 1996). This policy has alsobeen appliedin redesignations of Youngstown-Warren, Columbus, Canton, Cleveland-Akron-Lorain, Dayton-Springfield, Toledo, Preble County, Columbiana County, and Clinton County, Ohio, aswell as Detroit, Michigan.

EPA believes thatits decision not to insist on afully approved NSR program

as aprerequisite to redesignation is justifiable as an exercise ofthe Agency's general authority to establish de minimis exceptions to statutory requirements. See AlabamaPowerCo. v. Costle,636 F.2d 323, 360-61 (D.C. Cir. 1979). Under AlabamaPowerCo. v. Costle,EPAhas the authority to establish de minimis exceptions to statutory requirements where the application ofthe statutory requirements would be oftrivial orno value environmentally. In this context, the issue presented is whether EPA has the authority to establish an exception
to therequirements ofsection 107(d)(3)(E) thatEPA must fully
approve a SIP meeting allofthe requirements applicable to an area under section 110 and part D oftitle I ofthe Clean Air Act before redesignating the area. Plainly,the NSR provisions ofsection 110 andpart D are requirements that were applicable tothe Cincinnati-Hamilton area at the time of the submission ofthe request for redesignation. Thus, onits face, section 107(d)(3)(E) would seem to require that the State submit and EPAfully approve

apart D NSR program meeting the requirements ofthe Clean Air Act before

an area couldbe redesignated to attainment. Under EPA's de minimis authority, however, the agency may establish an exception to an otherwise plain statutory requirement ifits fulfillment would be oflittle or no environmental value. Therefore, itis
necessary to determine what would be achieved byinsisting that there be a fully-approved part DNSR program in place prior to the redesignation ofthe Cincinnati-Hamilton area.

For the following reasons, EPA believes that requiring the adoption and full approval ofa part D NSR program prior to redesignation would not be of significant environmental value in this case. Ohio assumed thatNSR would not apply afterredesignation to attainment, and therefore, assumed source growth factorsbased onprojected growth in the economy andin the area's population. Ohio has demonstrated that maintenance ofthe ozone NAAQS will

occur even ifthe emission reductions expected to resultfrom the part D NSR program do not occur. The emission projections made by Ohio to demonstrate maintenance ofthe NAAQS considered growth in point

source emissions (alongwith growth for other source categories) premised onthe assumption thatthe Prevention of Significant Deterioration (PSD) program, ratherthan the part D NSR, would be in effect during the maintenance period. (It shouldbe notedthat the growth factors assumed may even be overestimates underPSD, which wouldrestrain source growth through the application ofbest available control technology.) Under NSR, significant point source emissions growth would not occur. Thus, contrary to the assertion ofthe commenter, Ohio has demonstrated thatthere is no need
to retain the part D NSR as an operative program in the SIP during the maintenance period in order to provide for continued maintenance ofthe NAAQS. (Ifthis demonstration had not been made, NSR would have had to havebeen retained in the SIP as an operative program since itwould have been needed to maintain the ozone standard.)

The other purpose thatrequiring the full approval ofa part D NSR program might serve is to ensure thatNSR would become a contingency provision in the maintenance plan required for these

areas by section 107(d)(3)(E)(iv) and 175A(d). These provisions require that for an area to be redesignated to attainment, itmust receive full approval ofa maintenance plan containing "such contingency provisions as the Administrator deems necessary to

assure thatthe State will promptly
correct any violation ofthe standard which occurs after the redesignation of the area as an attainment area. Such provisions shall include a requirement thatthe State will implement all

measures with respect tothe control of the airpollutant concerned which were contained in the SIP for the area before redesignation ofthe area as an attainment area." Based on this language, it is apparent that whether an approved NSR program must be included as a contingency provision depends on whether it is a "measure" for the control ofthe pertinent air pollutants.

The term "measure" is not defined in section 175A(d) and Congress utilized 

### 37890

HeinOnline -- 65 Fed. Reg. 37890 2000Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

that term differently in different provisions ofthe Clean Air Act with respect to the PSD and NSR permitting
programs. For example, in section 110(a)(2)(A), Congress requires that SIPs include "enforceable emission limitations and other control measures, means, or techniques * * * as maybe necessary or appropriate to meetthe applicable requirements ofthe Act." In section 110(a)(2)(C), Congress requires that SIPs include "a program to provide for the enforcement ofthe measures described in subparagraph (A), and regulation ofthe modification and construction ofany stationary source within the areas covered by the plan as necessary to assure thatNAAQS are achieved, including a permit program as required in parts C andD." Ifthe term "measures" as used in section 110 (a)(2)(A) and (c) had been intended to include PSD and NSR there would have been no point torequiring that SIPs include both measures and preconstruction review under parts C andD (PSD orNSR). Unless "measures" referred to something otherthan preconstruction review under parts C andD, thereference to preconstruction review programs in section 110(a)(2)(C) would be rendered mere surplusage. Thus, in section 110(a)(2) (A)and (C), it is apparent that Congress distinguished "measures" from preconstruction review. On the other hand, in other provisions ofthe Clean Air Act, such as section 161, Congress appeared to include PSD within the scope ofthe
term "measures."

EPA believes thatthe factthat Congress used the undefined term "measure" differently in different sections ofthe Clean Air Act is germane. This indicates that the term is susceptible to more than one interpretation and thatEPA has the discretion to interpret it in a reasonable

manner in the context of section 175A. Inasmuch asCongress itselfhas used the
term in a manner that excluded PSD and NSR from its scope, EPA believes itis reasonable tointerpret "measure," as used in section 175A(d), not toinclude NSR. That this is a reasonable interpretation is further supported by the fact that PSD, aprogram that is the corollary ofpart D NSR for attainment
areas, goes into effect in lieu ofpart D NSR when an area isredesignated to attainment. This distinguishes NSR from other required programs under the Clean Air Act, such as inspection and maintenance programs, which have no corollary for attainment areas. Moreover, EPAbelieves that those other required programs are clearly within the
scope ofthe term "measure." EPA is not suggesting thatNSR and PSD are equivalent, but merely thatthey

are the same type ofprogram. The PSD
program is a requirement in attainment

areas and is designed to allow new

source permitting, yet contains adequate provisions to protect the NAAQS. Ifany information, including preconstruction monitoring, indicates that an area is not continuing to meet the NAAQS after redesignation to attainment, the requirements of40 CFR part 51, appendix S (Interpretive Offset Rule) or

a40 CFR 51.165(b) program would apply.

EPA believes thatin any area that is designated orredesignated as attainment under section 107, but experiences violations ofthe NAAQS, these provisions shouldbe interpreted

asrequiring major new or modified

sources to obtain VOC emission offsets ofat least a 1:1 ratio, aspresumptive that 1:1 NOx offsets are necessary. See October 14, 1994 memorandum from Mary Nichols entitled, "Part D New Source Review (partD NSR) Requirements for Areas Requesting Redesignation to Attainment." In addition,permits to install cannot be issued under the PSD program unless the applicant can demonstrate thatthe increased emissions from the new or modified source will not result in a violation ofthe NAAQS.

EPA's logic in treating part D NSR in this manner does not mean thatother applicable part D requirements, including those that have been previously met and previously relied
upon in demonstrating attainment, couldbe eliminated without an analysis demonstrating that maintenance would be protected. As noted above, Ohio has demonstrated thatmaintenance would be protected with PSD in effect, rather than part D NSR. Thus, EPAis not permitting part D NSR to be removed without a demonstration that maintenance ofthe standard will be achieved.

The position taken in this action is consistent with EPA's current national redesignation policy. This policy permits redesignation toproceed without otherwise required NSR
programs having been fully approved and converted to contingency provisions, provided thatthe area demonstrates, ashas been done in this
case, thatmaintenance will be achieved with the application ofPSD rather than part D NSR.
Comment 15:A commenter states that EPA cannot lawfully orrationally grant

aNOx waiver to the Kentucky portion ofthe nonattainment area because EPA has not determined thatNOx reductions are unnecessary throughout the entire nonattainment area; and EPAhas in fact proposed to approve NOx RACT as a contingency measure inthe Ohio portion ofthe nonattainment area; and EPAhas determined that additional NOxreductions are needed in Ohio to prevent ozone violations in downwind
states. The commenter asserts that EPA's approval ofa NOxwaiver under these circumstances, andits failure to require NOxRACT regionwide, is irrational and violates the CAA.

Response 15:We disagree with the
commenter. EPA has determined that additional NOx reductions are unnecessary throughout the entire nonattainment area as both the Kentucky and Ohio portions havethree years ofquality-assured ozone monitoring data indicating attainment. Based onthis data, the area has demonstrated in accordance with section 182(f)(1)(A) that additional reductions ofNOx will not contribute to attainment ofthe 1-hour ozone standard. Consequently, EPAis approving NOx RACT waivers forboth the Ohio and Kentucky portions ofthe Cincinnati-Hamilton nonattainment

area.

The area's contingency plan focuses initially on implementation ofVOC precursor controls inthe event of control inadequacies. Moreover, the redesignation proposal specifically
states that, although NOx RACT is listed in the Ohio portion ofthe contingency plan, such measures will be implemented only "if aviolation ofthe

ozone NAAQS is recorded in the Cincinnati[-Hamilton] Moderate Nonattainment Area after implementation ofthe selected VOC control measures" inthe contingency plan.

The CAA requires EPAtoview NOx waivers in a narrow manner. Ingeneral, section 182(f)provides that waivers
mustbe granted if states show that reducingNOx within a nonattainment

area would not contribute to attainment ofthe ozone NAAQS within the same nonattainment area. Only the role of local NOx emissions on local attainment ofthe ozone standard is considered in nonattainment areas outside an ozone transportregion. The role ofNOx in regional attainment is addressed separately under section 110(a)(2)(D) of the Clean Air Act, which prohibits one state from significantly polluting another state's downwind areas.

Comment 16:The commenter questions the accuracy, completeness and appropriateness ofOhio's emissions inventory. See 1997 citizen Audit report ofthe area's compliance with the ozone standard. The commenter finds thatthe 

### 37891

HeinOnline -- 65 Fed. Reg. 37891 2000Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

use of"previous emissions estimates" to project emissions ten years into the future for thepurpose of showing "Maintenance Projections" for the SIP
to be highly questionable, claiming that there isno demonstration thatthe VOC andNOx are stable or are being reduced.

The commenter states that theyhave compared emission inventory data in a number ofTitle V applications and draft OEPA permits (tothe extent theyhave been made available), expecting those applications and permits to provide the
most current VOC and NOx data.

The commenter claims to have found large discrepancies between past emission data and current Title V permit to operate applications. For example, Celotex is identified as a major

source for VOCs in Ohio EPA's Statement for Basis for Title V Permit. The commenter says thatthe Title V permit to operate indicates VOCs totaling over 100 tons per year, with no controls, but thatthe emission inventories used for past SIPs list at mostjustover 10 tons per year. The
commenter states thatthere are no VOC controls onthis facility. Ifpast inventories are correct, then this facility is or willbe emitting significantly more VOCs, which will affect ozone formation. Ifpast inventories didn't include all the VOCs (and reviews ofthe files indicate this is the case) then the
commenter believes the conformity budget is inaccurate.

The Formica facility is another example cited bythe commenter, who
states thatthis facility's Title V application estimated maximum emission rate for two coaters is over 3000 tons peryear each. The emission inventories have varied from a high of 264 tons for one unit and a low of11.87 for the other. The commenter contends that the Ohio EPA's local air agency has been having the facility redo stack tests "to show compliance" but hasn't done

so for the past twoyears.

The commenter claims to have found similar discrepancies at other facilities, like Morton International and Cincinnati Specialties, andthat some facilities donot have all their permits. The commenter complains that facilities

are being allowed to repeat stack tests

over and over or are not being required
to retest at capacity, because they aren't running at capacity. The commenter believes that the Title V program is years behind schedule and many nonTitle V permits have expired or are being held as "non-priorities".

The commenter overall finds a lack of

an effective permitting and enforcement
program which would assure the accuracy ofthe data used in the SIP, and thus assure compliance thatthe 1-hour standard can be met in future years. For

more information onpermit and enforcement failures, the commenter refers to the Sierra Club, OPIRG, Ohio Citizen Action and Rivers Unlimited petitions, supplemental petitions, reports and documentation submitted to EPA torevoke Ohio's authority to implement the Clean Air Act and other environmental laws.

The commenter contends thatnew

source review for modifications is not being done, and new source permitting has not been done properly for utilities. The commenter also claims to findthat major modifications have been made at Cincinnati Specialties and Celotex without undergoing NSR. The
commenter claims thatthis issue needs
to be systematically reviewed at Ohio EPA before considering a SIP or redesignation request adequate.

Response 16:We reviewed the 1990 base year emissions inventory for Ohio that was used to develop the emissions projections and approved it in a rulemaking dated December 7, 1995 (60 FR 62737). Thisinventory was thoroughly reviewed and deemed adequate after an opportunity for public
comment. The point source emissions

were based on permit information available at thattime. Emissions from individual point sources canvary from year to year due to shutdowns, changes in production and other factors. In addition,the emissions inventory was prepared to estimate what atypical

summer day's emissions were during 1990 instead ofshowing what the maximum emissions were that a source couldpotentially emit during that

summer. This is more representative of what is actually occurring than using the maximum potential emissions. Emissions inventory projections were made following EPA guidance for projecting emissions inventories. This guidance allows areas to project their actual emissions based onprojected changes in industrial employment. This is a reasonable factor to use to project future emissions for alarge number of

sources.

In any event, the ozone SIP for the Cincinnati-Hamilton area has been fully approved. The Title V permitting program is not an applicable SIP requirement andthere isno requirement for EPA to evaluate andreassess individual permits for enforceable emission limitsprior to redesignation of the area. The redesignation criteria do
not include reviewing permitting
programs and enforcement programs to ascertain whether ornot any implementation deficiencies exist. Any failures thatmay be occurring are not undermining attainment, and any deficiencies that are confirmed can be addressed and corrected in other
contexts. The maintenance plan is also designed to assure that attainment ofthe standard will be preserved.

As noted in EPA's Response to Comment 5,EPA in response to the petitions citedby the commenter, is currently conducting a comprehensive review ofthe implementation issues raised bythe petitions. Any implementation deficiencies that EPA finds as a result ofthis review will be addressed and corrected in other
contexts unrelated to the redesignation procedure thatis the subject ofthis rulemaking. The issues relating to alleged standard-setting, permit and enforcement failures raised by
commenters are not required to be resolved in the context ofa redesignation action. Also see Response 14.

Comment 17:The commenter notes that Stage II Vapor Recovery is assumed
to be in place to demonstrate conformity for the metropolitan planning organization's Transportation Improvement Program (TIP)for the approval andfunding ofhighway projects. The commenter states that Ohio EPA's local air agency has stated in the pastthat they check Stage II Vapor Recovery systems when installed, but when citizens complained about leaking and broken hoses, the air agency would notinvestigate, saying thatthey had checked compliance when the systems were installed. The commenter alleges that the failure to effectively enforce Stage II and subsequently suspend Stage II, invalidates the TIP conformity analysis and makes it more likely thatthe region will exceed the

ozone standard.

The commenter declares that transportation conformity analysis does
notinclude induced travel and exempted projects which were in the "pipeline" priorto the 1991 Intermodal Surface Transportation Efficiency Act (ISTEA)legislation. Now that such projects as the Butler Regional Highway

are coming online, the transportation
sector will be increasing its emissions.

Response 17:See Response 12. Transportation Plans must conform with the SIP requirements before they can be found adequate. Conformity of transportation plans isnot a requirement for redesignation of an area fromnonattainment to attainment, and thus these comments are not germane to this rule. Conformity requirements will continue to apply to the CincinnatiHamilton area once it isredesignated to attainment subject to the requirement to have amaintenance plan. 

### 37892

HeinOnline -- 65 Fed. Reg. 37892 2000Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

Comment18:The commenter argues that redesignation would mislead the public into thinking that Cincinnati's air does not pose a serious health risk.The
commenter states thatin May 1997, EPA issued "A Special Alert for People with Asthma and Other Respiratory Problems in the Greater Cincinnati/Northern Kentucky Metropolitan Area." EPA

warns thatnegative health effects are "of concern to everyone who works, plays or spends time outdoors, even the healthiest people." The commenter claims thatthere isno reason to believe that the air quality is any safer now than it was two years ago.

The commenter claims that in 1999 there were three violations ofthe 1-hour standard and 77 violations ofthe new 8- hour standard, according to Hamilton County Department ofEnvironmental Services (asof September 12, 1999). The
commenter contends that smog alerts

were also issued for 27 days, including

one eight-consecutive-day period from June 6 to 13; and two five-consecutiveday periods from July 16 to 20 andJuly 22 to 26. All together, the commenter contends, this represents nearly one third ofthe summer when itwas unsafe for people to breathe the air.

The CAArequires the SIPs to make RFP. The term "'reasonable further progress'" means such annual incremental reductions in emissions of the relevant air pollutant as are required by this part or may reasonably be required bythe Administrator for the
purpose ofensuring attainment ofthe applicable national ambient air quality standard bythe applicable date.' The
commenter states that 13 exceedances of the standard show thatthe RFP plan

was not adequate and still isn't adequate.

The commenter says that Ohio should be undertaking the measures outlined in the contingency plan since the area has
not yet achieved the standard.

According to the commenter, continued efforts are needed tomeet the 1-hour standard and that standard must be met before redesignation. In July 1997, EPA revised the NAAQS for

ozone. The commenter states thatEPA is currently phasing outand replacing the 1-hour ozone standard with the new eight-hour standard to protect against longer exposure periods. The 1-hour standard willbe revoked when an area has achieved three consecutive years of air quality data meeting the 1-hour standard. Further, the commenter argues, EPA states that an area meets the

ozone NAAQS ifthere is not more than

one day per year when thehighest hourly value exceeds the threshold. The
commenter claims thatEPA's policy refers to the "standard" not the technical issues ofa violation being three exceedances ofthe standard.

Response 18:We disagree with the
commenter. As shown above in Table 3 (Response 11), air quality monitors show thatthe area is attaining the 1- hour ozone standard. Ozone alerts were called in the area to alert the public to take steps to reduce air pollution when the area was either monitoring high levels ofozone orhad the potential to start monitoring high levels ofozone. Calling an ozone alert does not necessarily mean thatthe standard was exceeded on aparticular day. The summary ofmonitoring datain Response 11 shows thatthe number of monitored exceedances was much lower than the number ofalerts called. The air quality is measured byozone monitors andthe data collected is compared to the level ofthe ozone standard. See 40 CFR 50.9 andAppendix H. The number ofozone alerts called is not a part ofthis determination. Also, see Responses 2, 11, 19 and 20.

The RFP plan was approved as adequate. See 63 FR 4188 (January 28, 1998) and 63 FR 67586 (December 8, 1998). Emissions reductions provided by this plan have helped the area to attain the 1-hour ozone standard.

Comment 19:The commenter believes that EPA shouldnot take any action on the redesignation until the federal
courts resolve the current legal questions surrounding the new standard. In any event, the commenter states, EPA and the health community recognize that the old standard is unsafe. While the commenter agrees that EPA's interpretation ofthe letter ofthe law may qualify the area to be in attainment based onthe old standard, it believes that this ruling would distort the spirit andpurpose ofthe law.

Response 19:EPA's action to redesignate the Cincinnati-Hamilton

area to attainment under the 1-hour standard isnot affected by the 8-hour standard or any legal questions surrounding the status ofthe 8-hour standard. EPA currently has a legal obligation under the Clean Air Act to act

onredesignation requests. See section 107(d)(3)(D) ("Within 18 months of receipt ofa complete Stateredesignation submittal, the Administrator shall
approve or deny suchredesignation."). See alsoResponse 2 above.

Comment20:The commenter maintains thatthe Cincinnati-Hamilton

area continues to exceed the 1-hour

ozone standard. In 1999, the commenter states, the standard has been exceeded three times, in 1998 four times, in 1997 three times and in 1996 three times. The
commenter alleges thatthe standard has been exceeded 10 times in the three years being evaluated under this request, and thatit has been exceeded three times since the three years being usedfor the purpose of showing attainment.

The commenter contends thatthe regionwas supposed to attain the standard in 1996, yet three years later the standard is still being exceeded. The
commenter believes thatreclassifying the area as a seriousnonattainment area would result in significant andvalid steps to actually reduce ozone precursors. The commenter alleges that continued failure tomeetthe standard three years after the required date shows that further steps mustbe taken.

Response20:We evaluate attainment ofthe 1-hour ozone standard by comparing the data at each individual monitor to the 1-hour ozone standard. This datais summarized in Response 11. Table 3 shows thatthe total number ofexceedances measured at each individual monitor averages lessthan 1.0 over the 1996-1998 and 1997-1999 timeperiods. EPA's interpretation ofthe 1-hour ozone standard, long embodied in itsregulations, allows amonitor in the area to exceed the standard as long

as itdoes not average more than 1.0 per year over a three year period. See 40 CFR 50.9 andAppendix Hfor EPA's interpretation ofthe 1-hour ozone standard. This shows that the area has attained the standard.

The commenter has erroneously combined the data from several monitors in order to imply thatthe area is not attaining the 1-hour ozone standard. This isinconsistent with EPA'slong-standing regulations concerning the definition of compliance and howwe interpret the 1-hour ozone standard. See alsoResponse to Comment 21.

Comment21:The commenter states that a strict reading ofthe CAA (section 181(a)(5)(B)) requires thatnot more than 1exceedance ofthe national ambient air quality standard level for ozone may have occurred in the area in the year preceding the extension year (for extensions ofthe deadline). The Cincinnati-Hamilton area, the
commenter states, has far more than one exceedance peryear.

The commenter contends thatit is

nowthree years after the deadline for achieving the standard, andthat the region is nowwell overdue for "Reclassification Upon Failureto Attain." The CAArequires that "Within 6 months following the applicable attainment date (including any extension thereof) for an ozone nonattainment area, the Administrator shall determine, based on the area's 

### 37893

HeinOnline -- 65 Fed. Reg. 37893 2000Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

designvalue (as ofthe attainment date), whether the area attained the standard by that date. Except for any Severe or Extreme Area, any area that the Administrator finds has not attained the standard bythat date shall be reclassified by operation oflawin accordance with table 1ofsubsection (a)
to thehigher of-(i)the next higher classification for the area, or (ii)the classification applicable to the area's designvalue as determined at the time ofthe notice required under subparagraph (b)."

Response21:We disagree with the
commenter. Section 181(a)(5)(B) ofthe CAA governs what an area has to meet in order toreceive an attainment date extension. This area has met this part of the CAA andhas been given an extension ofthe attainment date twice. See final rule (62 FR 61241, November 17, 1997), effective December 17, 1997; and direct final rule (63 FR 14623, March 26, 1998), effective May 26, 1998. These two consecutive extensions extended the attainment date to November 15, 1998. The area attained the standard by this new deadline. Also

see air quality summary in Response 11. The area was not reclassified to a higher classification since it qualified for an extension ofthe attainment date, having attained the 1-hour ozone standard by the deadline set by the applicable extension. In this rulemaking EPAis making this determination of attainment by the applicable attainment date, and the area is not subject to reclassification. Comment22:The commenter alleges that the large number ofexceedances of the eight-hour standard are another indication that the regional ozone levels
must be reduced. The plan for reduction shouldbe put in place now, notjust to meet regulatory deadlines but toprotect public health.

Response22:The 8-hour ozone standard is not the subject ofthis rulemaking. The Cincinnati-Hamilton

area isbeing evaluated only with reference tothe 1-hour ozone standard. See Response 2and Response 19.

Comment23:The commenter contends that the SIP relied on voluntary actions such as those proposed by the Regional Ozone Coalition and funded byCongestion Mitigation and Air Quality Improvement program (CMAQ) (under ISTEA) funds, andthat the voluntary actions fail to meetthe CAA requirements ofbeing permanent and enforceable. Furthermore, the
commenter expresses the fear thatthe region will no longer qualify for CMAQ funds ifitis redesignated, and that the region will no longer have access to funds which havebeen used since 1996 to reduce the vehicle component of

ozone precursors, including reduced bus fares. The reduced bus fares have been effective in increasing ridership and would likely need to continue unless suchfunding comes from another

source. The commenter says ithas no indication that these funds have been replaced orwill come from other

sources.

Response23:We disagree with the
commenter. The voluntary actions were not used to meet the requirement that the improvement in air quality was due
to permanent and enforceable measures. Permanent and enforceable measures listed in the proposed rulemaking, such

asthe Federal Motor Vehicle Emissions Control Program, have provided the emissions reductions that have brought the area into attainment. The CAA does
not prohibit areas from using voluntary

measures to further reduce airpollution.

The State ofOhio receives CMAQ funding from the United States Department ofTransportation for all of the ozone and carbon monoxide nonattainment andmaintenance areas in Ohio. The CMAQ funds are allocated
to the states based on the allocation formula inthe Transportation Equity Act for the 21st century passed by Congress during 1998. The CincinnatiHamilton area currently receives CMAQ funding based onits status as a moderate ozone nonattainment area.

In general, the CMAQ funding allocation for a state is dependent onthe number and size ofthe ozone and carbon monoxide nonattainment and maintenance areas in the State. The allocation does change slightly when an

area goes from an ozone nonattainment

area to an ozone maintenance area. Ozone maintenance areas are eligible for CMAQ funding. The allocation of funding to the State for amaintenance

area is factored at a slightly lower level than for anonattainment area; however, the funding is still significant. Changing the status ofthe area to an attainment

area with amaintenance plan does not eliminate CMAQ funding. EPA believes that the CMAQ funds available to Ohio for the Cincinnati-Hamilton area will be sufficient to continue to support many ofthe existing air quality projects that

are currently being funded.

Comment24:The commenter opposes the redesignation because, as the
commenter states, most ofthe permits the commenter hasreviewed do not have enforceable limits. The commenter believes most "compliance" is determined by calculations based on unverified data, andthat facilities are not required to perform stack tests to show compliance with VOC limits. (It refers to files onCincinnati Specialties for example.) The commenter points out thatthe CAA states "Such plan provisions shall include enforceable emission limitations."

Response24:EPA approved enforceable limits into the SIP for Cincinnati Specialties located at 501 Murray Road, Cincinnati, Ohio. See 61 FR 18256, dated April 25, 1996. The rule containing these emissions limits is found at SIP section 3745-21-09(YY). These limits apply to Cincinnati Specialties.

The ozone SIP for the CincinnatiHamilton area hasbeen fully approved, and there are no criteria requiring EPA
to evaluate and assess Title Vpermit
programs orreview individual permits for enforceable emission limits prior to redesignation ofthe area. The SIP approval andredesignation criteria do
notinclude evaluating permitting programs to ascertain whether or not any deficiencies exist.Whatever failures maybe occurring are not undermining attainment, and any deficiencies that are confirmed canbe addressed and corrected in other contexts, including a finding offailure to implement under section 173(b) ofthe CAA orrequiring

a SIP revision under section 110(a)(2)(H) ofthe CAA.The maintenance plan is also designed to assure that attainment willbe preserved.

Also see Responses 5, 14, and 16. Comment25:What is the NAAQS? What is the "one-hour ozone standard"?

Response25:Air quality standardsknown as National Ambient Air Quality Standards (NAAQS)-set national standards for acceptable concentrations ofspecific pollutants in outdoor air that threaten public health andthe environment across broad regions ofthe country and are emitted in relatively large quantities by a variety of sources. EPAhas established air quality standards for six pollutants or classes of pollutants, including ground level

ozone. The 1-hour ozone standard is set at an ambient concentration of0.12 parts permillion andis averaged over

a 1-hour timeperiod.

Ozone monitors in the CincinnatiHamilton area are in operation from late spring to early fall, the period ofhighest

ozone concentrations. These monitors continuously sample and analyze the air for ozone. This data is averaged for each hour duringthe day and compared to the NAAQS. Forfurther information see 65 FR 3633-3634.

Comment26:Is this redesignation to

abetter or worse level?

Response26:Redesignating an area fromnonattainment to attainment changes its official listing to indicate thatthe area hasbetter air quality which is meeting the relevant NAAQS. 

### 37894

HeinOnline -- 65 Fed. Reg. 37894 2000Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

Comment27:Why is EPA "determining that certain attainment demonstration requirements, along with certain otherrelated requirements of part D ofTitle 1ofthe Clean Air Act not applicable tothe Cincinnati-Hamilton area"? Also, 65 FR 3632 ofthe proposed rule states that, "EPA has interpreted the general provisions of subpart 1of part D ofTitle 1 (sections 171 and 172)

so as not to require the submission of SIP revisions concerning RFP, attainment demonstrations, or contingency measures."

Response27:These measures were intended tobring an area into attainment ofthe NAAQS. EPAhas interpreted certain ofthese requirements as no longer being applicable in the Cincinnati-Hamilton

area since itis in fact monitoring attainment ofthe 1-hour ozone NAAQS. See proposed rulemaking at 65 FR 3630. Also, see May 10, 1995 memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, entitled "Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard," and Response 7,above, in this rulemaking. Comment28:Page 3636 ofthe proposed rulemaking states that "EPA believes, however, that in the context of the particular circumstances ofthis redesignation, it ispermissible to depart from that policy and instead accept a commitment to implement these RACT rules as contingency measures in the maintenance plan rather than require full adoption and approval ofthe rules prior to approval ofthe redesignation." Why do this and what exactly are these particular circumstances?

Response28:The proposed rule at 65 FR 3636-3637 contains a discussion of the reasoning and circumstances. Also,

see Response 7, above, in this rulemaking. Comment29:The 15 percent plan was mentioned on page 3636 ofthe proposed rulemaking. Why would reductions ofonly 15 percent be required in the area?

Response29:Section 182(b)(1) ofthe Clean Air Act specifically requires a 15% reduction for areas classified as moderate and above. These reductions helped to bring the area into attainment. Additional reductions are not now needed toreach attainment ofthe 1- hour ozone standard since the area is attaining the 1-hour ozone standard. Also, see Response to Comment 27 in this rulemaking. Comment30:How exactly does the Administrator determine thatNOx reductions would not contribute to attainment?

Response30:For the CincinnatiHamilton area this determination is based on air quality monitoring data showing thatthe area is already attaining the 1-hour ozone standard, and therefore it does not need any additional NOx reductions to attain the 1-hour

ozone standard. Also, see discussion andresponses elsewhere in this rulemaking.

III. WhatActions Are We Taking?

We are determining that the Cincinnati-Hamilton moderate ozone nonattainment area has attainedthe NAAQS for ozone by its (extended) attainment date. The CincinnatiHamilton area includes the Ohio Counties ofHamilton, Butler, Clermont, andWarren andthe Kentucky Counties ofBoone, Campbell, andKenton. Onthe basis ofthis determination, EPA is also determining that certain attainment demonstration requirements (section 172(c)(1)), along with certain other related requirements, ofpart D ofTitle 1ofthe CAA, specifically the section 172(c)(9) contingency measure requirement, the section 182(b)(1) attainment demonstration requirement andthe 182(j) multi-state attainment demonstration requirement are not applicable tothe Cincinnati-Hamilton

area.

We are approving an exemption from the NOxrequirement asprovided for in section 182(f)for the CincinnatiHamilton area.

We are approving the redesignation of the Cincinnati-Hamilton area to attainment ofthe 1-hour ozone standard and we are approving the section 175A maintenance plans as revisions tothe Ohio and Kentucky SIPs.The States of Ohio and Kentucky have satisfied all of the necessary requirements ofthe Act.

IV. Why Are We Taking These Actions?

We are making a determination that the area has attained the 1-hour ozone standard byits (extended) attainment date andhas continued to be in attainment since that time. EPA is basing this determination upon three
years ofcomplete, quality-assured, ambient air monitoring datafor the 1996-1998 ozone seasons that demonstrate thatthe ozone NAAQS has been attainedin the entire CincinnatiHamilton area. EPA also is determining that based on the most recent 3years of datafrom 1997-1999, the area has continued to attain the standard. EPA believes it isreasonable tointerpret provisions regarding attainment demonstrations, along with certain other related provisions, so as not to require SIP submissions, ifan ozone nonattainment area subject to those requirements is monitoring attainment ofthe ozone standard (i.e.,attainment of the NAAQS is demonstrated with three consecutive years ofcomplete, quality assured, air quality monitoring data). See May 10, 1995, memorandum from John Seitz (referenced in Response 27) and SierraClubv. EPA, 99 F.3d 1551 (10th Cir. 1996).

Section 182(f) establishes NOx requirements for ozone nonattainment

areas which require adoption and implementation ofcontrol measures for major stationary sources ofNOx similar
to those which apply tomajor stationary

sources ofVOCs. One ofthe control requirements applicable to major stationary sources ofVOCs isRACT. Therefore, pursuant to section 182(f) of the CAA, RACT is a requirement thatis also applicable tomajor stationary

sources ofNOx in an ozone nonattainment area. However, subsection 182(f)(1)(A) further provides thatthese requirements shall not apply
to a nonattainment area outside an

ozone transport region ifthe Administrator determines that additional NOx reductions wouldnot contribute to attainment ofthe ozone NAAQS in that area. Under EPA guidance, a request for an exemption fromthe NOx requirements maybe based upon the mostrecent three years ofmonitoring data.

An EPAmemorandum from John S. Seitz, Director, Office ofAir Quality Planning and Standards, dated February 8, 1995, entitled "Section 182(f) Nitrogen Oxides (NOx)ExemptionsRevised Process Criteria," decouples the section 182(f)exemptions fromNOx transportissues. The memorandum
states that for an area that did not implement section 182(f)NOx requirements, but did attain the ozone standard as demonstrated by ambient air monitoring data (consistent with 40 CFR part 58 and recorded in EPA's AIRS), it is apparent that the additional NOx reductions required by section 182(f) would not contribute to attainment of the ozone NAAQS in that area.

Because the Cincinnati-Hamilton area is currently demonstrating compliance with the ozone NAAQS based on three years ofcomplete, quality-assured, ambient monitoring data, EPA is exempting the area from the section 182(f)NOx requirements. As discussed in detail above, EPA is also determining thatthe Cincinnati-Hamilton area has attained the 1-hour ozone NAAQS. Ambient air monitoring data for the 1996 to 1998 ozone seasons demonstrate thatthe ozone NAAQS has been attained inthe area. In addition, 1999 

### 37895

HeinOnline -- 65 Fed. Reg. 37895 2000Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

ambient air monitoring data show that the area continues to attain the standard. Because the CincinnatiHamilton area has attained the ozone NAAQS, without benefit of additional NOx reductions, EPA has determined that this exemption request satisfies the NOx waiver test set forth in subsection 182(f)(1)(A).

We are approving the maintenance plan as arevision to the SIP because it
meets the requirements of section 175A and 107(d). We are also redesignating the area because three years ofambient air monitoring data demonstrate thatthe

ozone NAAQS has been attained, the

area has continued in attainment, and the area has satisfied the other requirements for redesignation.

V. What Are the Effects ofThese Actions?

These actions determine thatthe area attained the 1-hour ozone standard by its (extended) attainment date (November 15, 1998) and thatthe requirements of section 172(c)(1), 182(b)(1) and 182(j) concerning the submission ofthe ozone attainment demonstration and the requirements of section 172(c)(9) concerning contingency measures for reasonable further progress (RFP) or attainment are not applicable to the area. This final action also exempts the area from section 182(f)NOxrequirements for moderate ozone nonattainment areas. However, allNOx controls previously approved for the area by EPA must continue to be implemented. No additional NOx measures are required for purposes ofattaining the 1-hour standard.

The redesignation changes the official designation ofthe Ohio Counties of Butler, Warren, Clermont, and Hamilton andthe Kentucky Counties ofBoone, Campbell, and Kenton from nonattainment to attainment for the 1- hour ozone standard. It also approves as

a SIP revision and puts into place plans for maintaining the 1-hour ozone standard for the next 10 years. These plans include contingency measures to correct any future violations ofthe 1- hour ozone standard.

The 1-hour ozone standard mobile

source budgets for the Ohio portion of the area for the purposes of transportation conformity are now 37.9
tons per summer day VOC and 52.3 tons per summer day NOx for the year 2010. The mobile source budgets for the
purposes oftransportation conformity for the Kentucky portion ofthe area are

now 5.83 tons per summer day VOC and 15.13 tons per summer day NOxfor the
year 2010. VI. Approving SIP Revisions in Audit Law States

Nothing in this action should be construed as making any determination

or expressing any position regarding Kentucky's audit privilege and penalty immunity law Kentucky-"KRS 224.01- 040" or its impact upon any approved provision in the SIP, including the revision atissue here. The action taken herein does not express orimply any viewpoint on the question ofwhether there are legal deficiencies in this or any other Clean Air Act program resulting from the effect ofKentucky's audit privilege andimmunity law. A state auditprivilege andimmunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities. EPAmay at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions ofthe state plan,independently ofany state enforcement effort. In addition, citizen enforcement under section 304 ofthe Clean Air Act is likewise unaffected by a state auditprivilege or immunity law.

VII. Administrative Requirements

A. Executive Order12866

The Office ofManagement andBudget (OMB) has exempted this regulatory action from Executive Order 12866, entitled "Regulatory Planning and Review."

B. Executive Order13045

Protection ofChildren from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1)Is determined to be "economically significant" as defined under Executive Order 12866; and (2) concerns an environmental health or safety risk that EPA hasreason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule onchildren, and explain why the planned regulation is preferable to other potentially effective andreasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it does not involve decisions intended to mitigate environmental health or safety risks.

C.Executive Order13084

Under Executive Order 13084, EPA
may not issue a regulation that is not required by statute, that significantly affects oruniquely affects the communities ofIndian tribal governments, andthat imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance
costs incurredby the tribal governments, orEPA consults with those governments.

IfEPA complies by consulting, Executive Order 13084 requires EPAto provide to the Office ofManagement and Budget,in a separately identified section ofthe preamble to the rule, a description ofthe extent ofEPA's prior consultation with representatives of affected tribal governments, a summary ofthe nature oftheir concerns, and a statement supporting the need to issue the regulation.

In addition, Executive Order 13084 requires EPAto develop an effective process permitting elected officials and other representatives ofIndian tribal governments "to provide meaningful and timelyinput inthe development of regulatory policies on matters that significantly or uniquely affect their communities."

Today's rule does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve orimpose any requirements that affect Indian Tribes. Accordingly, therequirements of section 3(b) ofExecutive Order 13084 do not apply to this rule.

D.Executive Order13132

Federalism (64 FR43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPAto develop an accountable
process to ensure "meaningful and timely inputby State and local officials in the development ofregulatory policies thathave federalism implications." "Policies thathave federalism implications" is defined in the Executive Order to include regulations that have "substantial direct effects on the States, onthe relationship between the national government and the States, or onthe distribution of
power and responsibilities among the various levels ofgovernment." Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds
necessary to pay the direct compliance
costs incurredby State and local governments, orEPA consults with state and local officials earlyin the process ofdeveloping the proposed regulation. 

### 37896

HeinOnline -- 65 Fed. Reg. 37896 2000Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

EPA also may not issue a regulation that has federalism implications and that preempts state lawunless the Agency consults with State and local officials early in the process ofdeveloping the proposed regulation.

This rule will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution ofpower and responsibilities amongthe various levels ofgovernment, as specified in Executive Order 13132, because it merely affects the status ofa geographical area, does not impose any

new requirements on sources, or allows

a state to avoid adopting or implementing other requirements, and does not alter therelationship or the distribution ofpower and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 ofthe Executive Order do not apply to this rule.

E.Executive Order12898

Executive Order 12898 (59 FR 7629, February 16, 1994) instructs EPAto address, as appropriate, disproportionately high and adverse health or environmental effects on minority and low-income populations. As set forth in its response to Comment 3,above, EPA has found that this rulemaking is consistent with Executive Order 12898 and does not impose any disproportionately high and adverse human health orenvironmental effects

onminority and low-income populations.

F. Regulatory Flexibility
The Regulatory Flexibility Act (RFA) generally requires an agency to conduct

aregulatory flexibility analysis ofany rule subject to notice and comment rulemaking requirements unless the agency certifies thatthe rule will not have a significant economic impact on

a substantial number of small entities. Small entities include smallbusinesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on asubstantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the state is already imposing. In addition, approval ofNOx exemption requests and determination ofattainment do not create any new requirements, but instead allow the
states to avoid the imposition ofthe indicated requirements. Redesignation ofan area to attainment under section 107(d)(3)(E) ofthe Clean Air Act does not impose any new requirements on small entities. Redesignation is an action that affects the status ofa geographical area and does not impose any new regulatory requirements on

sources. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number ofsmall entities. Moreover, dueto the nature of the Federal-State relationship under the Clean Air Act, preparation offlexibility analysis would constitute Federal inquiry into the economic reasonableness of state action. The Clean Air Act forbids EPAto base its actions concerning SIPs on such grounds. UnionElectricCo. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

G. UnfundedMandates

Under sections 202 ofthe Unfunded Mandates Reform Act of1995 ("Unfunded Mandates Act"), signed into law on March 22, 1995, EPAmust prepare abudgetary impact statement to accompany any proposed orfinal rule that includes a Federal mandate that may result in estimated costs to state, local, ortribal governments in the aggregate; orto theprivate sector, of $100 million or more. Under section 205, EPA must select the most costeffective and leastburdensome alternative that achieves the objectives oftherule andis consistent with statutory requirements. Section 203 requires EPA to establish aplan for informing and advising any small governments thatmay be significantly

oruniquely impacted bythe rule.

EPA has determined that the approval actionpromulgated does not include a Federal mandate thatmay result in estimated costs of $100 million or more to either state, local, ortribal governments in the aggregate, orto the private sector. This Federal action
approves pre-existing requirements under state or local law, and imposes no

new requirements. Accordingly, no additional coststo state, local, or tribal governments, orto the private sector, result from this action.

H. Submission to Congressandthe ComptrollerGeneral

The Congressional Review Act, 5 U.S.C. 801 etseq., as added by the Small Business Regulatory Enforcement Fairness Act of1996, generally provides that before a rule may take effect, the
agencypromulgating the rule must submit arule report, which includes a copy ofthe rule, to each House ofthe Congress and tothe Comptroller General ofthe United States. EPAwill submit a report containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United Statesprior to publication ofthe rule in the Federal Register. A major rule
cannot take effect until 60 days after it ispublished in the Federal Register. This action is not a "major rule" as defined by 5 U.S.C. 804(2). This rule willbe effective July 5, 2000.

L NationalTechnology Transfer and AdvancementAct
Section 12 ofthe National Technology Transfer and Advancement Act (NTTAA)of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPAmust consider and use "voluntary

consensus standards" (VCS) ifavailable and applicable when developing programs and policies unless doing so wouldbe inconsistent with applicable law or otherwise impractical.

In reviewing SIP submissions, EPA's role is to approve state choices, providedthat they meetthe criteria of the Clean Air Act. In this context, and in the absence ofaprior existing requirement for the state to use voluntary consensus standards (VCS), EPAhas no authority to disapprove a SIP submission for failure to use VCS. Itwould thus be inconsistent with applicable lawfor EPA, when it reviews

a SIP submission, to use VCSin place ofa SIP submission that otherwise satisfies the provisions ofthe Clean Air Act. Redesignation is an action that affects the status ofa geographical area but does not impose any new requirements on sources. Thus, the requirements ofsection 12(d) ofthe National Technology Transfer and Advancement Act of1995 (15 U.S.C. 272 note) do not apply. j. Other
EPA finds that there is good cause for this determination ofattainment, NOx exemption, and redesignation to attainment and SIP revision tobecome effective 15 days after publication because a 30-day delayed effective date is unnecessary dueto the nature ofthese actions, which relieve the area from certain CleanAir Actrequirements that would otherwise apply to it. The 15-day effective date for this redesignation and other related actions is authorized under both 5U.S.C. 553(d)(1), which provides thatrulemaking actions may become effective less than 30 days after publication ifthe rule "grants or recognizes an exemption or relieves a restriction" and section 553(d)(3), which allows an effective date less than 

### 37897

HeinOnline -- 65 Fed. Reg. 37897 2000Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

30 days after publication "as otherwise provided by the agency for good cause found and published with the rule."

Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any SIP. Each request for revision to any SIP shall be considered separately in light of specific technical, economic, and environmental factors andregulatory requirements.

Ozone SIPs are designed to satisfy the requirements ofpart D ofthe Act and provide for attainment and maintenance ofthe ozone NAAQS. This final redesignation should notbe interpreted

as authorizing the State to delete, alter,

orrescind any ofthe VOC or NOx emission limitations and restrictions contained in the approved ozone SIP. Changes to ozone SIP VOC regulations rendering them less stringent than those contained in the EPA approved plan
cannot be made unless a revised plan for attainment andmaintenance is submittedto and approved by EPA. Unauthorized relaxations, deletions, and changes could result in both a finding ofnonimplementation (section 173(b) ofthe Act) and in a SIP deficiency call made pursuant to section 110(a)(2)(H) ofthe Act. K.Petitions forJudicialReview

Under section 307(b)(1) ofthe Clean Air Act, petitions forjudicial review of this action must be filed in the United States Court ofAppeals for the appropriate circuit by August 18, 2000. Filing apetition for reconsideration by the Administrator ofthis final rule does
not affectthe finality ofthis rule for the purposes ofjudicial review nor does it extend the time within which a petition forjudicial review may be filed, and shall not postpone the effectiveness of suchrule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List ofSubjects

40CFRPart52

Environmental protection, Air pollution control, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

40CFRPart81

Environmental protection, Air pollution control.

Authority: 42 U.S.C. 7401-7671q. Dated: May 26, 2000. Francis X.Lyons, Regional Administrator,Region5. Dated:June 5,2000. John H. Hankinson, Jr.,
Regional Administrator,Region 4. Chapter 1, title 40 ofthe Code of Federal Regulations is amended as follows:

PART 52-[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 etseq. Subpart S-Kentucky

2. Section 52.920 is amended by adding a new entryto the table in paragrpah (e) in numerical order to read

as follows:

§52.920 Identification of plan.

* * * * *

(e)EPA-approvednonregulatory provisions.

EPA-APPROVED KENTUCKY NONREGULATORY PROVISIONS

Appendix Title/subject State effective EPA approval date Federal Register notice date

20

........................ Northern Kentucky Ozone Maintenance

...................... July 5, 2000

............................. [Insert FR page citation] Plan.

3. Section 52.930 is amendedby addingparagraphs (g), (h), and (i) to read as follows:
§52.930 Controlstrategy ozone.

* * * * *

(g)The redesignation request submittedby the Commonwealth of Kentucky, on October 29, 1999, for the Kentucky portion ofthe CincinnatiHamilton moderate interstate ozone nonattainment area from nonattainment
to attainment was approved onJuly 5, 2000. The mobile source budgets for the Kentucky portion ofthe area for the purposes oftransportation conformity

are now 5.83 tons per summer day of volatile organic compounds and 15.13
tons per summer day ofnitrogen oxides for the year 2010. (h)Determination-EPA is determining that as ofJuly 5, 2000, the Kentucky portion ofthe CincinnatiHamilton ozone nonattainment area (whichincludes the Counties ofBoone, Kenton, and Campbell) has attained the 1-hour ozone standard and thatthe attainment demonstration requirements ofsection 182(b)(1), 182(j), and 172(c)(1), along with the section 172(c)(9) contingency measure requirements, do not apply to the area. (i) Approval-EPA is approving an exemption from therequirements contained in section 182(f) ofthe Clean Air Act. This approval exempts Boone, Kenton, and Campbell counties in Kentucky from the NOx related general conformity provisions; nonattainment NSR for new sources and modifications that are major for NOx; NOx RACT; and the requirement for a demonstration of compliance with the enhanced I/M performance standard for NOx.

4. Section 52.937is amended by addingparagraph (b)toread as follows:
§52.937 Review of new sources and modifications.

* * * * * (b) Approval-EPA is approving the section 182(f)oxides ofnitrogen (NOx) reasonably available control technology (RACT) exemption forthe Kentucky portion ofthe Cincinnati-Hamilton

ozone (03) moderate nonattainment

area. This approval exempts this area fromimplementing NOx RACT on major

sources ofNOx.
Subpart KK-Ohio

5. Section 52.1885 is amended by revising paragraph (x)and adding paragraph (a)(14), (b)(11), (dd)and (ee)
to read as follows:
§52.1885 Control strategy: Ozone.

(a) * * *
(14) Approval-EPA is approving the

ozone maintenance plan for the Ohio portion ofthe Cincinnati-Hamilton area 

### 37898

HeinOnline -- 65 Fed. Reg. 37898 2000Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

that was received byEPA onJuly 2, 1999, and completed on December 22, 1999. The mobile source budgets for the Ohio portion ofthe area for the
purposes oftransportation conformity

are now 37.9 tons per summer day of volatile organic compounds and 52.3
tons per summer day ofnitrogen oxides for the year 2010. (b) * * * (11) Butler, Clermont, Hamilton, and Warren Counties.

(x)Approval-EPA is approving requests submitted bythe State ofOhio

onMarch 18, November 1,and November 15, 1994, for exemption from the requirements contained in section 182(f) ofthe Clean Air Act. This approval exempts the following counties in Ohio from the NOx related general and transportation conformity provisions; nonattainment area NSR for

new sources and modifications that are major for NOx: Clinton, Columbiana, Delaware, Franklin, Jefferson, Licking, Mahoning, Preble, Stark, and Trumbull. This approval also exempts the following counties in Ohio from the NOx related general andtransportation conformity provisions; nonattainment

area NSR for new sources and modifications that are major for NOx; NOx RACT; and a demonstration of compliance with the enhanced I/M performance standard for NOx: Ashtabula, Cuyahoga, Geauga, Lake, Lorain, Medina, Portage, and Summit.

(dd)Determination-EPA is determining that, as ofJuly 5, 2000, the Ohio portion ofCincinnati-Hamilton

ozone nonattainment area (which includes the Counties ofButler, Clermont, Hamilton andWarren) has attained the 1-hour ozone standard and that the attainment demonstration requirements ofsection 182(b)(1), 182(j), and 172(c)(1), along with the section 172(c)(9) contingency measure requirements, do not apply to the area. (ee) Approval-EPA is approving an exemption from therequirements contained in section 182(f) ofthe Clean Air Act. This approval exempts Butler, Clermont, Hamilton, and Warren counties in Ohio from the NOx related general conformity provisions; the nitrogen oxides nonattainment NSR for

new sources and modifications that are major for NOx; NOx RACT; and a demonstration ofcompliance with the enhanced automobile inspection and maintenance performance standard for NOx.

6. Section 52.1879 is amended by revising paragraph (e) and adding paragraph (g)to read asfollows: 

### §52.1879 Review of new sourcesand modifications.

(e) Approval-EPA is approving requests submitted bythe State ofOhio

onMarch 18, November 1, and November 15, 1994, for exemption from the requirements contained in section 182(f)ofthe Clean Air Act. This approval exempts the following counties in Ohio from the NOx related general and transportation conformity provisions andnonattainment area NSR for new sources and modifications that

are major for NOx: Clinton, Columbiana, Delaware, Franklin, Jefferson, Licking, Mahoning, Preble, Stark, and Trumbull. This approval also exempts the following counties in Ohio from the NOxrelated general conformity provisions; nonattainment area NSR for

new sources and modifications that are major forNOx; NOxRACT; and a demonstration ofcompliance with the enhanced I/M performance standard for NOx: Ashtabula, Cuyahoga, Geauga, Lake, Lorain, Medina, Portage, and Summit.

* * *

(g)Approval-EPA is approving an exemption from the requirements contained in section 182(f) ofthe Clean AirAct. This approval exempts Butler, Clermont, Hamilton, and Warren counties in Ohio from nonattainment NSRfor new sources and modifications that are major for NOx.

PART 81-[AMENDED]

1. The authority citation for part 81 continues to read as follows:

Authority: 42 U.S.C. 7401 etseq.

2. Section 81.336 is amended by revising the ozone table entry for the Cincinnati-Hamilton Area toread as follows:

§81.336 Ohio.

OHIO-OZONE [1-hour standard]

Designation Classification Designated area Date 1 Type Date 1 Type

Cincinnati-Hamilton Area: Butler County

................................................................... 6/19/00 Attainment. Clermont County

.............................................................. 6/19/00 Attainment. Hamilton County

............................................................... 6/19/00 Attainment. Warren County

................................................................. 6/19/00 Attainment.

This date is November 15, 1990 unless otherwise noted.

* * * * * 3. Section 81.318 is amendedby revising the ozone table entry for the Cincinnati-Hamilton Area toread as follows:

§81.318 Kentucky 

### 37899

HeinOnline -- 65 Fed. Reg. 37899 2000

### Federal Register/Vol. 65, No. 118/Monday, June 19, 2000/Rules and Regulations

OHIO-OZONE [1-hour standard]

Designation Classification Designated area Date 1 Type Date 1 Type

Cincinnati-Hamilton Area: Boone County

.................................................................. 6/19/00 Attainment. Campbell County

.............................................................. 6/19/00 Attainment. Kenton County

................................................................. 6/19/00 Attainment.

This date is November 15, 1990 unless otherwise noted.

[FR Doc. 00-15294 Filed 6-16-00; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 82 [FRL-6718-2]

Protection of Stratospheric Ozone
AGENCY: Environmental Protection Agency. ACTION: Notice of acceptability.

SUMMARY: This document expands the list of acceptablesubstitutes for ozonedepleting substances (ODS) under the U.S. Environmental Protection Agency's (EPA) Significant New Alternatives Policy (SNAP) program. EFFECTIVE DATE: June 19, 2000. ADDRESSES: Information relevant to this document is contained in Air Docket A91-42, Central Docket Section, South Conference Room 4, U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460, telephone: (202) 260-7548. The docket may be inspected between 8:00 a.m. and 5:30 p.m. weekdays. As provided in 40 CFR part 2,areasonable fee may be charged for photocopying.
FOR FURTHER INFORMATION CONTACT: Anhar Karimjee at (202) 564-2683 or fax (202) 565-2095, U.S. Environmental Protection Agency, Stratospheric Protection Division, Mail Code 6205J, Washington, DC 20460. Overnight or courier deliveriesshould be sent tothe office location at 501 3rd Street, NW, Washington, DC, 20001. The Stratospheric Protection Hotline can be reached at (800) 296-1996. Further information can be found at EPA's Ozone Depletion World Wide Web site at "http://www.epa.gov/ozone/title6/ snap/". SUPPLEMENTARY INFORMATION:
I. Section 612 Program

A. Statutory Requirements B. Regulatory History II. Listing ofAcceptable Substitutes

A. Refrigeration and Air Conditioning B. Foam Blowing III. Additional Information Appendix A-Summary ofAcceptable Decisions
I. Section 612 Program

A. StatutoryRequirements Section 612 ofthe Clean Air Act authorizes EPA to develop aprogram for evaluating alternatives to ozonedepleting substances. EPA refers to this program asthe Significant New Alternatives Policy (SNAP) program. The major provisions of section 612 are:

9 Rulemaking-Section612(c) requires EPA to promulgate rules making it unlawful to replace any class I (chlorofluorocarbon, halon, carbon tetrachloride, methyl chloroform, methyl bromide, and hydrobromofluorocarbon) or class II (hydrochlorofluorocarbon) substance with any substitutethat the Administrator determines may present adverse effectsto human health or the environment where the Administrator has identified an alternative that (1) reduces the overall riskto human health andthe environment, and (2)is currently or potentially available.

* ListingofUnacceptable/Acceptable Substitutes-Section612(c) also requires EPA to publish alist ofthe substitutes unacceptable for specific

uses. EPA must publish acorresponding list of acceptablealternatives for specific uses.

* PetitionProcess-Section612(d) grants the right to any person to petition EPA to add asubstanceto or delete a substancefrom the lists published in accordancewith section 612(c). The Agency has 90 days to grant or denya petition. Where the Agency grants the petition, EPA must publish the revised lists within an additional 6months. * 90-dayNotification-Section612(e) requires EPA to require any person who produces achemical substitute for a class I substanceto notify theAgency not less than 90 days before new or existing chemicals are introduced into interstate commerce for significant new
uses as substitutes for aclass I substance. The producer must also provide the Agency withthe producer's unpublished health and safety studies

on such substitutes.

* Outreach-Section612(b)(1) states thatthe Administrator shall seekto maximize the use offederal research facilities and resources to assistusers of class I andII substances in identifying and developingalternatives to the use of such substances in key commercial applications.

* Clearinghouse-Section 612(b)(4) requires the Agency to set up apublic clearinghouse ofalternative chemicals, product substitutes, and alternative manufacturing processes that are available for products and manufacturing processes which use class I andII substances.

B.RegulatoryHistory

On March 18, 1994, EPA published rulemaking (59 FR 13044) which described the process for administering the SNAP program and issued EPA's first acceptability listsfor substitutes in the major industrial use sectors. These sectors include: refrigeration and air conditioning;foam blowing; solvents cleaning;fire suppression and explosion protection; sterilants; aerosols; adhesives, coatings and inks; and tobacco expansion.These sectors composethe principal industrial sectors that historically consumedthe largest volumes of ozone-depleting compounds.

As described inthis original rule for the SNAP program, EPA does not believe that rulemaking procedures are required to listalternatives as acceptablewith no limitations. Such listingsdo not impose any sanction, nor do they remove any prior license to use
asubstance. Consequently, by this notice EPA is adding substancesto the listof acceptable alternatives without first requesting comment on new listings. 

### 37900

HeinOnline -- 65 Fed. Reg. 37900 2000